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Thursday, June 13,2013

COGA agrees to drop 'takings' claim in fracking suit against Longmont

By Jefferson Dodge

A judge has granted a motion dismissing a claim in the Colorado Oil and Gas Association’s lawsuit against the city of Longmont over its ban on fracking, or hydraulic fracturing.

The claim that both sides agreed to have dismissed deals with “takings,” or whether the city’s ban impermissibly takes private property (oil and gas resources) from a property owner (the owner of the mineral rights). The association’s claim challenging the legality of the ban remains active.

The dismissal, signed by District Court Judge D.D. Mallard on June 5, was hailed by city of Longmont’s officials as a substantial victory.

“It’s significant for the city in that it will likely save the city a lot of legal costs in the near future,” spokesperson Rigo Leal told Boulder Weekly. “We certainly attach some significance to it.”

He said he did not know why the Colorado Oil and Gas Association (COGA) backed away from that claim and agreed to have it dismissed.

Gov. John Hickenlooper has repeatedly used the “takings” argument as one of the primary motivations behind the state’s own lawsuit against Longmont over the fracking ban, saying it unfairly deprives leaseholders and mineral owners from accessing their resources.

COGA attorney Ken Wonstolen, senior counsel with Beatty & Wozniak, downplayed the significance of the dismissal, saying that the oil and gas trade association just wanted to simplify the case. In addition, he says, it was unclear whether an entity other than a property owner whose property was being threatened has a right to bring such a claim. In other words, since COGA doesn’t actually own any mineral rights itself, it may not have standing to challenge the taking of those resources.

“The ability of a trade association to prosecute a takings claim on behalf of its members is not as clear in the law as the ability of a trade association simply to attack the ordinance as being invalid,” he told BW. “There is conflicting precedent on that issue, and we decided it didn’t make sense to engage in skirmishing about standing, as opposed to just getting to the basic question here of can Longmont have a ban on hydraulic fracturing.”

When told that city officials see the dismissal as significant, Wonstolen replies, “I disagree with that. It’s peripheral to our main claim, which is that it’s illegal for Longmont to ban hydraulic fracking. If [the ban] goes away, then takings issues go away. If it survives, some other company can bring it, but there was no reason to have an argument about whether COGA could prosecute that claim.”

He adds that it is common to include all possible claims when filing a complaint, because there is limited ability to amend the claim down the line.

“So you put everything but the kitchen sink in there when you file the complaint, and as things work out, you may decide to streamline the case, and that’s what both sides did here,” Wonstolen says.

Both the state’s lawsuit and the COGA case are still in the initial pleading stage, and no dates have been set yet for trial.

Respond: letters@boulderweekly.com

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