by Bill Knowles
DENVER — A case argued before the Colorado Supreme Court on Wednesday, Nov. 30 will carry implications for a case filed by a group of Huerfano County residents against the Colorado Oil and Gas Conservation Commission.
The high court deliberated on the merits of the case Thursday, Dec. 8 and was expected to make their ruling by the end of the year. The case being weighed is one involving the Grand Valley Citizens Alliance (GVCA) and their complaint against the COGCC. The complaint in part concerns the denial of a public hearing by the COGCC on contested drilling permits.
The lawsuit filed by the Citizens for Huerfano County (CHC) also alleges that the COGCC denied a public hearing before approving a permit that would allow Shell Western Energy Production, Inc., to drill a 15,000 foot exploratory natural gas well 2.5 miles west of La Veta. That lawsuit is currently pending in Denver District Court and is awaiting a ruling by the state supreme court on the GVCA case.
At the heart of the issue is Colorado State Statute 34-60-106(1)(f) which allows the COGCC to decide who is allowed to request a public hearing. Dan Domenico, attorney for the COGCC, argued that the commission has decided that only drilling applicants, local governments, and surface owners may request a public hearing.
However Colorado State Statute 34-60-108(7) allows for “any interested party” to be granted such a hearing. The high court must decide which statute takes precedence.
In a press release, CHC attorney Julie Kreutzer stated at issue is the right to be in the room when matters concerning the health, safety, air and water are being decided. “The Colorado legislature has a history of making it possible for citizens to be part of decision-making in public policy matters that affect us,” said Kreutzer. “The commission has decided that they do not want citizens to be there, and it is up to the Colorado Supreme Court to decide if the legislature has changed its mind about citizen involvement.”
When asked by Colorado Supreme Court Justice Gregory J. Hobbs Jr. about the basis for the COGCC recognizing some as interested parties and not others, Domenico responded the COGCC is “charged with balancing local concerns and are charged by the legislature to deal with thousands of permits.”
He was quoted in a press release as stating that “ … allowing local governments, but not citizens, to request a public hearing is a perfectly rational way to exclude those who have only a passing interest in an area.”
“How can they say we have only a passing interest when we live here?” asked CHC vice president Sandy Borthick. “If anyone has only a passing interest, it’s the state agencies that seem to work hand-in-hand to issue as many permits as they can without adequately safeguarding our air, water, health and safety.”
Justice Hobbs also asked both sides what happens if citizens want a hearing, but the local government does not request one on their behalf? Domenico answered that citizens have many opportunities to provide information to the COGCC and that they can petition the COGCC at any time for a rule-making, but that “they just can’t step in at the tail end of the process, at the APD [application for drilling permit] stage.”
Grand Valley Citizens Alliance attorney, Martha Tierney, argued that “Requiring local governments to request the hearings on behalf of citizen groups would be an unfunded mandate to the counties. It would be unwarranted to make the rights of citizens contingent on the views of the county commissioners.”
In neither the GVCA nor the CHC case did the local governments request a public hearing for the citizens. In the GVCA case, Garfield County filed an amicus brief with the court on the side of the citizens, while the Huerfano County commissioners have filed on the side of the COGCC against the CHC.
An amicus brief is filed by an organization or professional person, in this case county commissioners, who are not a party to the case but have been permitted by the court to advise it in respect to some matter of law that directly affects the case in question.
According to a press release, Colorado Supreme Court Justice Nathan B. Coats asked Tierney if she was saying that an “interested person should get the same rights to a hearing as the local government?” Tierney answered “yes your honor.”
Then Justice Hobbs asked if Tierney thought the COGCC was picking and choosing whom to consider as interested parties. She said, “yes,” and then according to the press release stated, “The COGCC’s fear of a deluge of public hearing requests is unfounded.” Only three requests for a public hearing have been submitted since the Court of Appeals ruling on the Grand Valley Citizen’s Alliance June 2010.
That ruling by the Colorado Court of Appeals was in favor of the GVCA and was appealed by the COGCC pushing the case into the Colorado Supreme Court.