COLORADO COURT OF APPEALS 2 East 14th Avenue Denver, Colorado 80203

Appeal from Boulder County District Court The Honorable D.D. Mallard Case No. 2013CV63

Plaintiff-Appellee: Colorado Oil and Gas Association,

v.

Defendant-Appellant: City of Longmont, Colorado,

and

Intervenors-Appellants: Our Health Our Future Our Longmont; Food and Water Watch; Earthworks; and Sierra Club,

and

Intervenor-Appellee: TOP Operating Company,

and

Appellee: Colorado Oil and Gas Conservation Commission.

COURT USE ONLY

Steven J. Lechner (#19853) Jaimie Cavanaugh (#44639) MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 (303) 292-1980 (facsimile) lechner@mountainstateslegal.com jcavanaugh@mountainstateslegal.com

Court of Appeals Case No.: 2014CA1759

BRIEF OF AMICUS CURIAE MOUNTAIN STATES LEGAL FOUNDATION IN SUPPORT OF APPELLEES

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CERTIFICATE OF COMPLIANCE

I hereby certify that this amicus curiae brief complies with all requirements

of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in

these rules. The undersigned further certifies that the brief complies with C.A.R.

28(g) because it contains 4,710 words. Finally, the undersigned acknowledges that

this amicus curiae brief may be stricken if it fails to comply with any of the

requirements of C.A.R. 28 and C.A.R. 32.

DATED this 5th day of March 2015.

Respectfully submitted,

s/ Steven J. Lechner Steven J. Lechner (#19853) Mountain States Legal Foundation 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 (303) 292-1980 (facsimile) lechner@mountainstateslegal.com

Attorney for Amicus Curiae Mountain States Legal Foundation

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TABLE OF CONTENTS Page

CERTIFICATE OF COMPLIANCE ................................................... i TABLE OF AUTHORITIES ................................................................ iii STATEMENT OF THE ISSUE ............................................................ 1 IDENTITY AND INTEREST OF AMICUS CURIAE ........................ 1 STATEMENT OF THE CASE ............................................................. 2 SUMMARY OF THE ARGUMENT ................................................... 5 ARGUMENT ........................................................................................ 5 I. THE PRINCIPLE FUNCTION OF GOVERNMENT IS TO

PROTECT PROPERTY ............................................................. 5 II. PROPERTY IS ESSENTIAL TO LIBERTY............................. 10 III. THE JUDICIARY IS RESPONSIBLE FOR PROTECTING

PROPERTY FROM OPPRESSIVE FACTIONS ...................... 13 IV. ARTICLE XVI OF THE LONGMONT CHARTER

CAUSES WASTE AND EVISCERATES PROPERTY RIGHTS IN DIRECT CONTRAVENTION OF THE OGCA .. 16

CONCLUSION ..................................................................................... 19 CERTIFICATE OF SERVICE ............................................................. 20

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TABLE OF AUTHORITIES Page CASES Armstrong v. United States, 364 U.S. 40 (1960) ............................................................................. 19 Bank of Columbia v. Okely, 17 U.S. 235 (1819) ............................................................................. 6 Bd. of Cnty. Comm’rs, La Plata Cnty. v. Bowen/Edwards Associates, Inc., 830 P.2d 1045 (Colo. 1992) (en banc) ............................................... 1 Bd. of Cnty. Comm’rs v. Vail Associates, Inc., 19 P.3d 1263 (Colo. 2001) ................................................................. 15 Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897) ........................................................................... 11 Dolan v. City of Tigard, 512 U.S. 374 (1994) ........................................................................... 12 Energy Mgmt. Corp. v. City of Shreveport, 397 F.3d 297 (5th Cir. 2005) ............................................................. 18–19 Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997) (en banc) ................................................. 17 Joint Landowners Coalition of New York, Inc. v. Cuomo,

Index No. 843-2014 (N.Y. Sup. Ct, Albany County) (appeal filed July 25, 2014) ............................................................... 2

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) ........................................................................... 16 Lucas v. S. Carolina Coastal Council, 505 U.S. 1003 (1992) ......................................................................... 8

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Lynch v. Household Finance Corp., 405 U.S. 538 (1972) ........................................................................... 12 Marbury v. Madison, 5 U.S. 137 (1803) ............................................................................... 15 Marvin M. Brandt Revocable Trust v. United States, 134 S. Ct. 1257 (2014) ....................................................................... 1 Miller Bros. v. Dep’t of Natural Res., 513 N.W.2d 217 (Mich. App. 1994) .................................................. 1, 18 Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236 (3d Cir. 2011), as amended (Mar. 7, 2012) ................. 1 Mitchell v. Espinosa, 243 P.2d 412 (Colo. 1952) ................................................................. 16–17 Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893) ........................................................................... 10 Murray v. Hoboken Land & Imp. Co., 59 U.S. 272 (1855) ............................................................................. 6 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) ........................................................................... 17 Rocky Mountain Fuel Co. v. Heflin, 366 P.2d 577 (Colo. 1962) ................................................................. 17 Simson v. Langholf, 293 P.2d 302 (Colo. 1956) ................................................................. 17 SWEPI, LP v. Mora County, New Mexico, No. CIV 14-0035 JB/SCY, 2015 WL 365923 (D.N.M. Jan. 19,

2015) .................................................................................................. 17, 18

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United States v. Carlton, 512 U.S. 26 (1994) ............................................................................. 12 United States v. Carolene Products Co., 304 U.S. 144 (1938) ........................................................................... 12 United States v. Gen. Motors Corp., 323 U.S. 373 (1945) ........................................................................... 16 United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993) ............................................................................. 12 United States v. Lee,

106 U.S. 196 (1882) ........................................................................... 14 Vermillion v. Mora County, New Mexico, No. 1:13-cv-01095 CEG/GBW (D.N.M. filed Nov. 11, 2013) ......... 2 Voss v. Lundvall Bros., 830 P.2d 1061 (Colo. 1992) (en banc) ............................................... 4 Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980) ........................................................................... 8 W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ........................................................................... 13 Wilkinson v. Leland, 27 U.S. 627 (1829) ............................................................................. 10 CONSTITUTIONAL PROVISIONS COLO. CONST. art II, § 3 .......................................................................... 7–8 COLO. CONST. art II, § 25 ........................................................................ 12 U.S. CONST. amend. V ............................................................................ 11

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U.S. CONST. amend. XIV ........................................................................ 12 STATUTES Oil and Gas Conservation Act, C.R.S. §§ 34-60-101 to 130 .................. 4, 5, 16, 18 C.R.S. § 34-60-102(1)(a)(III) ............................................................ 18 C.R.S. § 34-60-103(11) ...................................................................... 18 C.R.S. § 34-60-103(12) ...................................................................... 18 C.R.S. § 34-60-103 (13) ..................................................................... 18 OTHER

1 The Records of the Federal Convention of 1787 (Max Farrand ed. 1937) .................................................................................................. 9 Alex Ritchie, Creatures Of Circumstance: Conflicts Over Local Government Regulation Of Oil And Gas, 60 RMMLF-INST 11-1 (2014) ...................................................................................................... 4 Alex Ritchie, On Local Fracking Bans: Policy and Preemption in New Mexico, 54 Nat. Resources J. 255 (2014) ....................................... 2, 3 Allan Ingelson, Tina Hunter, A Regulatory Comparison of Hydraulic Fracturing Fluid Disclosure Regimes in the United States, Canada, and Australia, 54 Nat. Resources J. 217 (2014) ........... 3 Bernard H. Siegan, Economic Liberties and the Constitution (2d ed. 2006) ........................................................................................... 5, 6 Bernard H. Siegan, Majorities May Limit the People’s Liberties Only When Authorized To Do So by the Constitution, 27 San Diego L. Rev. 309 (1990) ....................................................................... 13

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Bernard H. Siegan, Property and Freedom: The Constitution, the Courts, and Land-Use Regulation (1997) ............................................... 16 Clint Bolick, Grassroots Tyranny: The Limits of Federalism (1993) ...................................................................................................... 14

Clint Bolick, David’s Hammer: The Case for an Activist Judiciary (2007) ...................................................................................... 14, 16 Congressional Research Service, Mary Tieman & Adam Vann, Hydraulic Fracturing and Safe Drinking Water Act Issues (2013) ........ 3 David B. Spence, Backyard Politics, National Policies: Understanding the Opportunity Costs of National Fracking Bans, 30 Yale J. on Reg. Online 30 (2013) ...................................................... 3 Declaration of Independence, 1 Stat. 1 (July 4, 1776) ........................... 9 Developments in the Law – The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324 (1982) ............................. 7–8 Discourses on Davila, in 6 The Works of John Adams 280 (Charles Francis Adams ed., 1851) ......................................................... 10 The Federalist Papers, The Federalist No. 10 (Madison) (Clinton Rossiter ed., 1961) .................................................................................. 13, 14 The Federalist Papers, The Federalist No. 78 (Hamilton) (Clinton Rossiter ed., 1961) .................................................................................. 15, 16 The Federalist Papers, The Federalist No. 85 (Hamilton) (Clinton Rossiter ed., 1961) .................................................................................. 9 Food & Water Watch, The Social Costs of Fracking—A Pennsylvania Case Study (Sept. 2013) ................................................... 4 James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (2d ed. 1998) ....................... 6, 9, 10, 11

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James Madison, Property, Nat’l Gazette (Mar. 27, 1792), reprinted in, 1 The Founders’ Constitution (P. Kurland and R. Lerner eds. 1987) .................................................................................... 16 John Locke, Second Treatise of Government (1690) (C. B. Macpherson ed., 1980) ............................................................................ 7, 8 Justice William J. Brennan, Jr., Speech given at the Text and Teaching Symposium, Georgetown University (October 12, 1985) reprinted at http://www.pbs.org/wnet/supremecourt/democracy/sources_document7.html (last checked March 4, 2015) .............................................. 13–14 Longmont Charter, Article XVI ............................................................. 4, 8, 17, 18 Mark L. Pollot, Grand Theft and Petit Larceny: Property Rights in America (1993) ................................................................................... 16 Magna Carta, Chapter 39 (1215) ............................................................ 5 Magna Carta, Chapter 29 (1225) ............................................................ 6 Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985) .......................................................................... 16 Richard A. Epstein, The Ebbs and Flows in Takings Law: Reflections on the Lake Tahoe Case, 2002 Cato Sup. Ct. Rev. 5 (2002) ...................................................................................................... 8 Sir William Blackstone, The Commentaries Of Sir William Blackstone, Knight, On The Laws And Constitution Of England (ABA ed. 2009) ....................................................................................... 7, 14 Terry W. Roberson, The State of Texas Versus the EPA Regulation of Hydraulic Fracturing, Houston Lawyer (March/April 2011) ................................................................................. 3

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Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (University of North Carolina Press 1980) .............. 9 William Penn, The Excellent Privilege of Liberty and Property Being the Birth-Right of the Free-Born Subjects of England (1687) reprinted in, 1 The Founders’ Constitution (P. Kurland and R. Lerner eds. 1987) ................................................................................ 7

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STATEMENT OF THE ISSUE

Whether the district court properly invalidated Article XVI of the Longmont

Charter on preemption grounds because it causes waste and destroys property

rights by effectively prohibiting the extraction of oil and gas.

IDENTITY AND INTEREST OF AMICUS CURIAE

Mountain States Legal Foundation (“MSLF”) is a nonprofit, public-interest

legal foundation organized under the laws of the State of Colorado. MSLF is

dedicated to bringing before the courts those issues vital to the defense and

preservation of individual liberty, the right to own and use property, the free

enterprise system, and limited and ethical government. Since its creation in 1977,

MSLF and its attorneys have actively participated in litigation to protect property,

including the right to develop mineral estates. See e.g., Marvin M. Brandt

Revocable Trust v. United States, 134 S. Ct. 1257 (2014); Minard Run Oil Co. v.

U.S. Forest Serv., 670 F.3d 236 (3d Cir. 2011), as amended (Mar. 7, 2012); Miller

Bros. v. Dep’t of Natural Res., 513 N.W.2d 217 (Mich. App. 1994); Bd. of Cnty.

Comm’rs, La Plata Cnty. v. Bowen/Edwards Associates, Inc., 830 P.2d 1045 (Colo.

1992) (en banc). MSLF attorneys are also representing mineral owners in

challenges to restrictions placed on their ability to develop their oil and gas estates

because of the speculative fear and hysteria regarding hydraulic fracturing. See

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e.g., Vermillion v. Mora County, New Mexico, No. 1:13-cv-01095 CEG/GBW (D.

N.M. filed Nov. 11 2013); Joint Landowners Coalition of New York, Inc. v.

Cuomo, Index No. 843-2014 (N.Y. Sup. Ct., Albany County) (appeal filed July 25,

2014). The use of this demonstrably safe completion operation unlocks vast

reserves of oil and gas that would be otherwise unrecoverable, thereby lowering

energy costs to the benefit of local residents and communities, as well as the states

and the Nation.

As fully demonstrated below, the principle function of government is to

protect property, which is essential to individual liberty. The greatest threat to

property is oppressive factions, especially those operating at the local level. It is

the responsibility of the judiciary to protect property from these factions. MSLF

submits that these tenets will assist this Court in resolving this appeal.

STATEMENT OF THE CASE Various methods of fracturing rock formations to facilitate oil and gas

production have been utilized since 1859, when the first commercial well was

drilled in the United States. Alex Ritchie, On Local Fracking Bans: Policy and

Preemption in New Mexico, 54 Nat. Resources J. 255, 260 and n. 32 (2014).

“Hydraulic fracturing, meaning the use of water to fracture rock formations to

produce oil and gas, was first tested in 1903 and first used commercially in 1948.”

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Id. at 260. “In the last 60 years, more than 1 million [oil and gas] wells have been

hydraulically fractured.”1 Terry W. Roberson, The State of Texas Versus the EPA

Regulation of Hydraulic Fracturing, Houston Lawyer, at 24 (March/April 2011).

Today, more than 90 percent of all new natural gas wells depend on hydraulic

fracturing to be successful. CRS, Hydraulic Fracturing, supra, at 2. Without

hydraulic fracturing operations, significant amounts of hydrocarbon resources

would be left in the ground as unrecoverable. Allan Ingelson & Tina Hunter, A

Regulatory Comparison of Hydraulic Fracturing Fluid Disclosure Regimes in the

United States, Canada, and Australia, 54 Nat. Resources J. 217, 221 (2014).

Moreover, the combination of hydraulic fracturing and recent advances in

horizontal drilling technology has transformed American energy markets by

enabling the economical production of natural gas from shale formations; thereby,

sharply increasing the domestic supply of this clean-burning energy source, and

driving prices to record lows.2 CRS, Hydraulic Fracturing, supra, at 3.

1 Hydraulic fracturing is also used in drinking water and geothermal wells. Congressional Research Service, Mary Tieman & Adam Vann, Hydraulic Fracturing and Safe Drinking Water Act Issues, 1 n.1 (2013) (hereinafter “CRS, Hydraulic Fracturing”). 2 Natural gas-fired power plants emit about half the carbon dioxide emitted by coal-fired plants on a per-BTU basis. See David B. Spence, Backyard Politics, National Policies: Understanding the Opportunity Costs of National Fracking Bans, 30 Yale J. on Reg. Online 30, 32 (2013).

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While some predict that hydraulic fracturing will provide energy security,

others seek to prevent the practice and use scare tactics to achieve their irrational

and selfish goal. Alex Ritchie, Creatures Of Circumstance: Conflicts Over Local

Government Regulation Of Oil And Gas, 60 RMMLF-INST 11-1, 11-4 (2014)

(noting that some opponents have maintained that hydraulic fracturing causes

“promiscuity and drug addiction.” (citing Food & Water Watch, The Social Costs

of Fracking—A Pennsylvania Case Study, at 3–4 (Sept. 2013))). Perhaps

influenced by this “sky-is-falling” rhetoric, the voters of Longmont added Article

XVI to the Longmont Charter, which completely and permanently bans all

hydraulic fracturing operations within the City. R. CF. p. 2039. Because the ban

causes waste and violates property rights, the Colorado Oil and Gas Association

and TOP Operating Company challenged the ban on preemption grounds. Id. at

2362–67.

The district court held Article XVI invalid as preempted by the Oil and Gas

Conservation Act (“OGCA”), C.R.S. §§ 34-60-101 to 130. The district court based

its holding upon the preemption principles established by the Colorado Supreme

Court in Voss v. Lundvall Bros., 830 P.2d 1061 (Colo. 1992) (en banc) and other

decisions. R. CF. pp. 2048–54. This appeal followed.

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SUMMARY OF THE ARGUMENT The right to own and use property existed before the creation of

governments. In fact, people formed governments for the protection of their

property, which is essential to liberty. The biggest threat to property and liberty

are oppressive factions (i.e., today’s special interest groups), particularly those

operating at the local level. The judiciary is responsible for protecting property

and liberty from these oppressive factions.

Hydraulic fracturing is a demonstrably safe and necessary completion

operation. Longmont’s ban causes waste and violates property rights, including

the correlative rights of those who own the rights to the oil and gas underlying

Longmont and the surrounding areas. Applying well-established legal principles,

the district court correctly held that Longmont’s ban on hydraulic fracturing was

preempted by the OGCA. As demonstrated below, this Court should affirm.

ARGUMENT I. THE PRINCIPLE FUNCTION OF GOVERNMENT IS TO PROTECT

PROPERTY. The sanctity of property in America can be traced to the Magna Carta.

Bernard H. Siegan, Economic Liberties and the Constitution 1–57 (2d ed. 2006).

Chapter 39 of the Magna Carta (1215) provides: “[n]o freeman shall be taken or

imprisoned, or disseised … unless by the lawful judgment of his peers, or by the

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law of the land.” Chapter 29 of the 1225 charter “broadened and replaced”

Chapter 39 of the original charter: “‘No freeman shall be taken or imprisoned, or

disseised of his freehold, or liberties … but by lawful judgment of his peers, or by

the law of the land ….’” Siegan, Economic Liberties, supra, at 7 (quoting Magna

Carta (1225)). Thus, the Magna Carta secured private property against arbitrary

deprivations by the government.3 James W. Ely, Jr., The Guardian of Every Other

Right: A Constitutional History of Property Rights 13 (2d ed. 1998).

Importantly, early American colonists believed the right to property,

guaranteed in the Magna Carta, to be part of their birthright as English subjects.

Id.; Siegan, Economic Liberties, supra, at 7. For example, in 1687, William Penn

proclaimed:

It may reasonably be supposed that we shall find in this part of the world, many men, both old and young, that are strangers, in a great measure, to the true understanding of that inestimable inheritance that every Free-born Subject of England is heir unto by Birth-right, I mean that unparalleled privilege of Liberty and Property . . . in pursuance of which I do here present thee with that ancient garland, the fundamental laws of England, bedecked with many precious

3 The phrase “by the law of the land,” used in the Magna Carta, is now known as “due process of law.” Bank of Columbia v. Okely, 17 U.S. 235, 244 (1819) (The words “by the law of the land” are “intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.”); Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 276 (1855) (“The words, ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of the land,’ in Magna Charta [sic].”).

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privileges of Liberty and Property by which every man that is a Subject to the Crown of England, may understand what is his right, and how to preserve it from unjust and unreasonable men ….

William Penn, The Excellent Privilege of Liberty and Property Being the Birth-

Right of the Free-Born Subjects of England (1687) (emphasis in original),

reprinted in, 1 The Founders’ Constitution 431–32 (P. Kurland and R. Lerner eds.

1987). Around this time, John Locke published his famous Second Treatise of

Government, in which he explained that private property existed under natural law

before the creation of governments. John Locke, Second Treatise of Government,

§§ 25–51 (1690) (C. B. Macpherson ed., 1980); see also Sir William Blackstone,

The Commentaries Of Sir William Blackstone, Knight, On The Laws And

Constitution Of England 9 (ABA ed. 2009) (identifying the “absolute rights” of the

individual as “the right of personal security, the right of personal liberty, and the

right of private property”). Because private property existed before government,

any legitimate government is based on a compact whereby people gave their

allegiance to the government in exchange for the protection of their property.

Locke, Second Treatise, supra, §§ 123–131; see COLO. CONST. art II, § 3.4

4 Colorado’s inalienable rights clause, COLO. CONST. art II, § 3, like similar provisions in other state constitutions “provide[s] textual evidence of an intent on the part of the constitutional ratifiers to afford substantive protection against the power of the state to impair economic interests. Developments in the Law – The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1480 and n.

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Because of this compact, the major purpose of government is to protect property,

which Locke equated to preservation of liberty. Id. § 124 (“The great and chief

end therefore, of men’s uniting into common-wealths, and putting themselves

under government, is the preservation of their property.” (emphasis in original));

id. § 123 (Men are “willing to join in society with others, who are already united,

or have a mind to unite for the mutual preservation of their lives, liberties and

estates, which I call by the general name, property.” (emphasis in original)).

The influence of Locke on the Framers of the Constitution cannot be

understated. See Richard A. Epstein, The Ebbs and Flows in Takings Law:

Reflections on the Lake Tahoe Case, 2002 Cato Sup. Ct. Rev. 5 (2002) (The

Framers recognized that “principles of good government started with the protection

105 (1982) (emphasis added). In other words, the ratifiers did not intend for the clause to be used as a sword by private parties to summarily extinguish the inalienable rights of their neighbors. See Opening Brief of Appellants-Intervenors at 16–22 (attempting to justify Longmont’s ban on Colo. Const. art II, § 3). Instead, nuisance law (with its concomitant evidentiary requirements) is designed to resolve these types of private disputes. It goes without saying that the purported findings in Article XVI of the Longmont City Charter do not constitute credible evidence of nuisance. See Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1031 (1992) (“We emphasize that to win its case South Carolina must do more than proffer the legislature’s declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a common-law maxim such as sic utere tuo ut alienum non laedas. As we have said, a ‘State, by ipse dixit, may not transform private property into public property without compensation....’” (quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980)).

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of private property . . . .”). For example, Thomas Jefferson incorporated Locke’s

principles into the Declaration of Independence:

WE hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.

1 Stat. 1 (July 4, 1776).5 Also taking a page from Locke, John Rutledge of South

Carolina told the delegates at the Philadelphia Convention that “[p]roperty was

certainly the principal object of Society.” Ely, The Guardian, supra, at 43 (quoting

1 The Records of the Federal Convention of 1787, 534 (Max Farrand ed. 1937)).

Alexander Hamilton also believed that “[o]ne great objt. of Govt. is personal

protection and the security of Property.” Id. (quoting 1 The Records of the Federal

Convention, supra, at 302); see also The Federalist Papers, Federalist No. 85, 520

(Hamilton) (Clinton Rossiter ed., 1961)6 (expounding that the adoption of the

Constitution would provide “additional securit[y] . . . to liberty, and to property”).

5 Although Jefferson substituted “Pursuit of Happiness” for “estates,” this change should not be interpreted as lessening the importance of property rights. In fact, “‘the acquisition of property and the pursuit of happiness were so closely connected with each other in the minds of the founding generation that naming only one of the two sufficed to evoke both.’” Ely, The Guardian, supra, at 29 (quoting Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (University of North Carolina Press 1980)). 6 All later citations to these papers are to this edition of The Federalist Papers.

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Thus, the principle function of government is to ensure the sanctity of private

property. See Wilkinson v. Leland, 27 U.S. 627, 657 (1829) (“The fundamental

maxims of a free government seem to require, that the rights of personal liberty

and private property should be held sacred.”); Monongahela Navigation Co. v.

United States, 148 U.S. 312, 324 (1893) (“[I]n any society the fullness and

sufficiency of the securities which surround the individual in the use and

enjoyment of his property constitute one of the most certain tests of the character

and value of the government.”).

II. PROPERTY IS ESSENTIAL TO LIBERTY.

In 1790, John Adams declared: “[p]roperty must be secured or liberty

cannot exist.” Ely, The Guardian, supra, at 43 (quoting Discourses on Davila, in 6

The Works of John Adams 280 (Charles Francis Adams ed., 1851)). The next year,

the Fifth Amendment took effect and expressly incorporated into the Constitution

Adams’ belief that property is fundamental to liberty. As finally adopted:

[T]he Fifth Amendment contains two important property guarantees, along with procedural safeguards governing criminal trials. The amendment provides in part that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Madison’s decision to place this language next to criminal justice protections, such as the prohibitions against double jeopardy and self-incrimination, underscored the close association of property rights with personal liberty. Individuals needed security against both arbitrary punishment and deprivation of property.

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Ely, The Guardian, supra, at 54 (emphasis added) (quoting U.S. CONST. amend.

V).

For over 200 years, it has been consistently recognized that private property

is essential to liberty and a free society. For example, in 1897, the Supreme Court

declared:

Due protection of the rights of property has been regarded as a vital principle of republican institutions. “Next in degree to the right of personal liberty ... is that of enjoying private property without undue interference or molestation.” The requirement that the property shall not be taken for public use without just compensation is but “an affirmance of a great doctrine established by the common law for the protection of private property. It is founded in natural equity, and is laid down as a principle of universal law. Indeed, in a free government, almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortune of every citizen.”

Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 235–236 (1897)

(citations omitted) (emphasis added). Seventy-five years later, the Court again

recognized the “interdependence” between property and liberty:

[T]he dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth, a ‘personal’ right …. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.

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Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972) (citations omitted)

(emphasis added);7 see United States v. James Daniel Good Real Prop., 510 U.S.

43, 61 (1993) (“Individual freedom finds tangible expression in property rights.”).

Accordingly, because property is essential to liberty, both property and

liberty are entitled to the same level of protection. Indeed, the same right to “due

process of law” exists whether a person is being deprived of either property or

liberty. U.S. CONST. amend. XIV; COLO. CONST. art II, § 25; see United States v.

Carlton, 512 U.S. 26, 41 (1994) (Scalia, J., concurring) (“The picking and

choosing among various rights to be accorded ‘substantive due process’ protection

is alone enough to arouse suspicion; but the categorical and inexplicable exclusion

of so-called ‘economic rights’ (even though the Due Process Clause explicitly

applies to ‘property’) unquestionably involves policymaking rather than neutral

legal analysis.”).

7 By eliminating the perceived dichotomy between liberty and property and by recognizing property as “basic civil right[,]” the Court rejected the idea that property was somehow an inferior right, as suggested in United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). See Dolan v. City of Tigard, 512 U.S. 374, 392 (1994) (“We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation ….”).

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III. THE JUDICIARY IS RESPONSIBLE FOR PROTECTING PROPERTY FROM OPPRESSIVE FACTIONS.

The Framers recognized the grave threat that “factions” pose to property and

liberty. The Federalist No. 10, supra, at 77–84 (Madison). Madison characterized

these “factions” as:

[A] number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

Id. at 78. In other words, Madison anticipated today’s special interests groups who

seek to trample on property rights and, thereby, destroy liberty.8

8 That these special interest groups may garner a majority of the votes is of no moment because property and liberty are paramount in this country. See Bernard H. Siegan, Majorities May Limit the People’s Liberties Only When Authorized To Do So by the Constitution, 27 San Diego L. Rev. 309, 349 (1990) (“The Constitution did not establish majority rule; it created a unique system wherein individual liberty often is immune from majority will.”). Indeed, the Framers insulated property and liberty from the whims of the majority:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property … may not be submitted to vote; they depend on the outcome of no elections.

W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis added); see Justice William J. Brennan, Jr., Speech given at the Text and Teaching Symposium, Georgetown University (October 12, 1985) (“It is the very purpose of

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Madison also recognized that the greatest threat to property and liberty from

factions is at the local level:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.

The Federalist No. 10, supra, at 83 (Madison) (emphasis added); see generally,

Clint Bolick, Grassroots Tyranny: The Limits of Federalism 76–92 (1993)

(demonstrating that, despite the enormous size of the national government, local

governments pose the biggest threat to property and liberty).

To counteract this threat to property and liberty, the Framers separated the

government’s powers into three co-equal branches, and intended for the judiciary

to be the ultimate protector of property and liberty. United States v. Lee, 106 U.S.

196, 218–20 (1882); Clint Bolick, David’s Hammer: The Case for an Activist

Judiciary 35–47 (2007); see Blackstone, Commentaries, supra, at 12 (noting that

a Constitution—and particularly of the Bill of Rights—to declare certain values transcendent, beyond the reach of temporary political majorities.” (reprinted at http://www.pbs.org/wnet/supremecourt/democracy/sources_document7.html (last viewed March 4, 2015) (emphasis added)).

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one who is wrongly deprived of property or liberty should first seek redress from

the judiciary before petitioning the king or parliament). For example, Hamilton

explained that it is the duty of the judiciary “to declare all acts contrary to the

manifest tenor of the Constitution void. Without this, all the reservations of

particular rights or privileges would amount to nothing.” The Federalist No. 78,

supra, at 466 (Hamilton); accord Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It

is emphatically the province and duty of the judicial department to say what the

law is” and to declare that a law “repugnant to the [C]onstitution, is void.”): Bd. of

Cnty. Comm’rs v. Vail Associates, Inc., 19 P.3d 1263, 1272 (Colo. 2001).

Hamilton also explained that the judiciary is responsible for protecting property

from oppressive factions:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community…. But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.

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The Federalist No. 78, supra, at 469–70 (Hamilton) (emphasis added); see also

Bolick, David’s Hammer, supra, at 157–64. In short, only if the judiciary fulfills

its duty, will property and liberty be secure. See Mark L. Pollot, Grand Theft and

Petit Larceny: Property Rights in America 56–66 (1993); Bernard H. Siegan,

Property and Freedom: The Constitution, the Courts, and Land-Use Regulation

47–74 (1997).

IV. ARTICLE XVI OF THE LONGMONT CHARTER CAUSES WASTE AND EVISCERATES PROPERTY RIGHTS IN DIRECT CONTRAVENTION OF THE OGCA.

It is well recognized that property constitutes more than permanent physical

objects. Instead, property refers to the all the rights over a particular thing that the

owner of that property enjoys against the world. James Madison, Property, Nat’l

Gazette (Mar. 27, 1792), reprinted in, 1 The Founders’ Constitution, supra, at

598–99; United States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945). Thus, the

ordinary conception of property embraces far more than the right to naked

possession: it embraces the right to use property. Richard A. Epstein, Takings:

Private Property and the Power of Eminent Domain 58–60 (1985); Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435–36 (1982).

Colorado recognizes a mineral estate as an interest in real property,

severable from the surface estate. Mitchell v. Espinosa, 243 P.2d 412, 416–17

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(Colo. 1952) (en banc). The mineral estate includes the oil and gas estate, which

can be conveyed, leased, or reserved. See Simson v. Langholf, 293 P.2d 302, 306–

07 (Colo. 1956) (en banc). The essential stick in the bundle of rights making up

the oil and gas estate is the right to extract the oil and gas. Rocky Mountain Fuel

Co. v. Heflin, 366 P.2d 577, 580 (Colo. 1962) (the owner of the oil and gas estate

owns “the right to prospect for and carry on all necessary operations for the

production of oil and gas.”); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913,

926 (Colo. 1997) (en banc) (“Severed mineral rights lack value unless they can be

developed.”); SWEPI, LP v. Mora County, NM, No. CIV 14-0035 JB/SCY, 2015

WL 365923, *60 (D.N.M. Jan. 19, 2015) (“the right to oil and gas consists of the

right to extract it.”); cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414

(1922) (“For practical purposes, the right to coal consists in the right to mine it.”)

(quotations omitted).

As acknowledged by the district court, “[h]ydraulic fracturing is now

standard for virtually all oil and gas wells in our state and across much of the

country.” R. CF. p. 2039 (quotation omitted); id. (“Most of the hydrocarbon

bearing formations in Colorado would not produce economic quantities of

hydrocarbons without hydraulic fracturing.”) (quotation omitted). Thus, by

banning hydraulic fracturing, Longmont has effectively prevented the extraction of

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otherwise recoverable oil and gas resources and, thereby, causes “waste.” C.R.S.

§§ 34-60-103(11) to (13); R. CF. p. 2052 (district court finding that “Longmont’s

ban … causes waste…. Mineral deposits are being left in the ground by all the

wells that are not being drilled due to the frac[turing] ban.”). It also eviscerates the

property rights of those owning interests (royalty and working) in the oil and gas

underlying the City and surrounding areas. C.R.S. § 34-60-102(1)(a)(III) (purpose

of the OGCA is “to protect, and enforce the coequal and correlative rights of

owners and producers in a common source or pool of oil and gas”); R. CF p. 2048–

49 (district court finding that Longmont’s ban has an extraterritorial effect because

oil and gas reserves do not recognize political boundaries); R. CF. p. 2052 (district

court finding that “Longmont’s ban … impairs the correlative rights of owners.”);

see Miller Bros, 513 N.W.2d at 220 (ban on drilling effectuated a taking).

Accordingly, the district court correctly held that Article XVI of the Longmont

Charter is preempted by the OGCA. R. CF. p. 2054; see SWEPI, 2015 WL

365923, at *100–05 (local ordinance that banned oil and gas extraction activities

preempted by New Mexico state law because it caused waste and violated

correlative rights); Energy Mgmt. Corp. v. City of Shreveport, 397 F.3d 297, 302–

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05 (5th Cir. 2005) (local ban on drilling preempted by state law). This Court

should affirm the district court’s well-supported and well-reasoned holding.9

CONCLUSION Based upon the foregoing, the judgment of the district court should be

affirmed.

DATED this 5th day of March 2015. Respectfully submitted,

s/ Steven J. Lechner Steven J. Lechner (#19853) Jaimie Cavanaugh (#44639) Mountain States Legal Foundation

2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 (303) 292-1980 (facsimile) lechner@mountainstateslegal.com jcavanaugh@mountainstateslegal.com Attorneys for Amicus Curiae Mountain States Legal Foundation

9 Affirming the district court will not infringe any rights of Longmont or its residents who may oppose hydraulic fracturing. They could attempt to assuage their speculative fears the constitutional way—by exercising the power of eminent domain and paying just compensation. See Armstrong v. United States, 364 U.S. 40, 49 (1960) (The Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”).

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CERTIFICATE OF SERVICE

I certify that on the 5th day of March 2015, the foregoing document was

filed with the Court of Appeals and true and accurate copies of the same were

served on the following counsel of record via the Integrated Colorado Courts E-

Filing System:

T. Eugene Mai, City Attorney Daniel E. Kramer, Assistant City Attorney City of Longmont, Civic Center Complex 408 3rd Avenue Longmont, Colorado 80501 Phillip D. Barber, Esq. 1675 Larimer Street, Suite 620 Denver, Colorado 80202 Attorneys for City of Longmont Mark J. Mathews Michael D. Hoke Wayne F. Forman Brownstein Hyatt Farber Schreck, LLP 410 17th Street, Suite 2200 Denver, Colorado 80202-4432 Karen L. Spaulding Beatty & Wozniak, P.C. 216 16th Street, Suite 1100 Denver, CO 80202 Attorneys for Colorado Oil & Gas Association

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Thomas J. Kimmell Zarlengo & Kimmell, P.C. 1775 Sherman Street, Suite 1375 Denver, Colorado 80203 Attorney for TOP Operating Company Kevin Lynch Brad Arthur Bartlett Environmental Law Clinic University of Denver Sturm College of Law 2255 E. Evans Avenue, Suite 335 Denver, Colorado 80208 Attorneys for Citizen Intervenors Our Health, Our Future, Our Longmont;

Sierra Club; and Food and Water Watch and Earthworks Eric Huber Sierra Club 1650 38th Street, Suite 102W Boulder, Colorado 80301 Attorney for Sierra Club and Earthworks Jake Matter, Assistant Attorney General Julie M. Murphy Christopher K. Boeckx Ralph L. Carr, Colorado Judicial Center 1300 Broadway, 10th Floor Denver, Colorado 80203 Attorneys for Colorado Oil & Gas Conservation Commission Rachel Lee Allen Geoffrey T. Wilson Colorado Municipal League 1144 Sherman Street Denver, Colorado 80203 Attorneys for Colorado Municipal League

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Thomas A. Carr Office of the City Attorney P.O. Box 791 Boulder, Colorado 80306 Attorney for City of Boulder Jeffrey P. Robbins Goldman, Robbins & Nicholson, P.C. 679 E. 2nd Avenue, Suite C P.O. Box 2270 Durango, Colorado 81302 Attorney for Board of County Commissioners of County of Boulder, State of Colorado s/ Steven J. Lechner Steven J. Lechner (#19853)