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Proposed Anti-Fracking Ballot Measure Causes Ripples, Raises Legal Questions

Jim Hill
A drilling operation near Godding Hollow Parkway in Frederick, Colo., Aug. 2013.

Plans recently announced by Local Control Colorado to put a statewide issue on the November ballot is soliciting strong responses across the state.

Opposition has already emerged. Coloradans for Responsible Energy Development, an educational outreach campaign funded by Noble Energy and Anadarko Petroleum Corporation, came out against the ballot measure.

“We do have a good system in place in Colorado and it is working properly. To go and change everything just for the sake of change doesn’t seem necessary at this time,” said spokesman Jon Haubert.

Meantime, about 50 county commissioners and city council members wrote an open letter to Gov. John Hickenlooper urging more tools for local governments to regulate oil and gas development. The letter states:

We ask that you further affirm that local zoning and regulations are not preempted by the state. Without this, cities, towns and counties are not able to make decisions that are in the best interest of their residents without the fear of expensive litigation. A community’s right to self-determination is not a partisan issue. It is of great importance to all Coloradans. While the State has an important role to play in setting broad statewide protections, local governments should be able to go beyond this baseline; the fact is, local governments are best equipped to make local decisions about land use in their communities -- not the State.

The Local Control Colorado initiative seeks to amend the state constitution to give cities and towns more leeway to restrict when, where and how oil and gas is developed — including fracking.

Right now cities like Fort Collins, Lafayette and Longmont that have passed fracking bans or moratoriums are embroiled in lawsuits. One aim of the ballot measure is to clear up the legal gray area.

David Neslin, a lawyer with a partner with law firm Davis, Graham & Stubbs and former head of the Colorado Oil and Gas Conservation Commission said the ballot measure — if passed — could still be the subject of legal action.

That’s because it doesn’t address the issue of whether a local prohibition or ban constitutes “a taking” of someone’s mineral rights.

“Under Colorado law if the government takes your property without your consent that’s a taking and you’re entitled to be compensated by the government for that,” said Neslin. “There would still be an argument even if this provision were to be adopted that if a restriction has the effect of preventing someone from developing their property or oil and gas rights, then the local government has taken those rights and may potentially be sued by that mineral owner.”

Local Control Colorado will have a hearing with the state March 7 on the proposed ballot language. If approved, organizers would have until August to collect 86,000 valid signatures to get the initiative on the November ballot.

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