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COGA Seeks Court Action Against City/County Frack Ban

The Colorado Oil and Gas Association (COGA) on Monday filed a complaint seeking a declaratory judgment to invalidate a five-year ban on hydraulic fracturing (fracking) in the city and county of Broomfield, CO. It was filed in the state district court in Broomfield.

COGA's Doug Flanders noted that in three earlier decisions this year, Colorado district courts have decided that local bans and moratoria on fracking and related drilling activities are pre-empted by state law, making the bans illegal (see Shale Daily, Aug. 28). In each case, the courts ruled in favor of COGA's claims, striking down voter-approved bans in Fort Collins, Lafayette and Longmont, Flanders said.

Longmont and Fort Collins have appealed those court decisions. Lafayette decided not to appeal, citing budget constraints, Flanders said.

COGA's latest action comes after a district court earlier this fall ruled that the fracking ban put in place by Broomfield voters in November 2013 didn't apply to Denver-based producer Sovereign Operating Co. because it had a memorandum of understanding (MOU) with the city before the ban was imposed (see Shale Daily, Oct. 1).

The court ruled in the Sovereign case that the ban could not be applied retroactively to disallow oil and gas operations from taking place under the MOU.

"A ban on oil/gas development is clearly a violation of state law regulating oil and gas," said COGA President Tisha Schuller. "Three court decisions have ruled that bans are illegal and invalidated those bans."

In its complaint, COGA cited recent decisions by judges in Boulder and Larimer counties that ruled against the bans as being preempted by state law. The association lawyers said the Broomfield city/county charter amendment "adversely affects COGA's and its members' rights.”

Therefore, COGA has asked the court to determine that the ban is "invalid and unenforceable" because of state and federal laws preempting it.

"Colorado has among the most stringent, well-constructed oil/gas regulations in the nation, and we have a court system that respects the rule of law and rights granted through contractual agreements," said Schuller, adding that in the past three years her association and individual members have worked to create operating agreements with local communities.

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