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District Court dismisses CHC appeal

by Susan Simons
DENVER — On January 24, 2013, Denver District Court Judge Edward Bronfin dismissed the appeal of Citizens for Huerfano County (CHC) versus the Colorado Oil and Gas Conservation Commission (COGCC).
The CHC lawsuit concerned the permitting process for the proposed Klikus Well and flowback pit two miles west of La Veta for which Shell Western Exploration and Production, Inc. (SWEPI) was seeking COGCC approval. The CHC had submitted three claims for review by the courts.
The first claim alleged that COGCC failed to abide by their own rules. After they had determined that the SWEPI application was complete in early May and after they granted conditional approval on June 9, 2011, they did post the relevant information on their website and did notify the relevant agencies, but they did not notify the county local government designee (LGD), at that time County Administrator John Galusha.
According to COGCC rules, after such notification, citizens and the LGD have a twenty-day public comment period to provide any comments they may have regarding the proposed oil and gas location. The thrust of the CHC argument here is that county residents did not have timely notice of the details of the permit application and were denied their right to a twenty-day period to study and respond.
COGCC admitted that it failed to abide by its rules but claimed it remedied the situation by withdrawing its approval of the permit and allowing the county to comment for twenty days in June 2011. The permits were approved again only after the Huerfano Board of County Commissioners had elected not to comment or to request a hearing during that time.
In the second CHC claim, the CHC questions whether the COGCC administrative record shows thorough enough attention to issues such as the sensitive geology of the area, baseline water testing, and the implications of pit storage of contaminated water.
The court concluded that COGCC did thoroughly consider issues such as public health and environmental and wildlife concerns in approving the permits for the well and pit. The court opinion stated that the COGCC administrative records do not provide a complete picture of the process COGCC eventually went through in seeking additional information from SWEPI and in communicating with CHC.
The third claim the court was asked to consider was whether COGCC’s current public notice rules and procedures provide constitutional due process to the public. CHC claims that citizens currently cannot get adequate notice of new oil and gas activities unless they know how to find and interpret drilling permit applications on the COGCC website.
The court determined the CHC could not challenge the constitutionality of the COGCC rules and procedures for public notice because, to do so, a claimant must have suffered actual injury to a legally protected interest. Thus the court concluded that it did not need to decide for this case whether or not notice posted on COGCC’s web site was adequate to protect citizens’ due process rights.