Community rights: still waiting for its day in court

[This is an editoral I submitted March 6, 2017 to local newspapers in time for the Lafayette City Council vote on a Climate Bill of Rights ordinance on the following day.]

With the conservative front pressing its agenda across the country, Broomfield's city council hesitating to pass their own fracking moratorium and prevent imminent drilling in its residential neighborhoods, and Colorado's AG suing Boulder Country over its moratorium on fracking, it is high time that the nascent community rights movement raise its head and tell the Colorado judiciary: we are still waiting for our day in court.

I am going to tell a story here, a story about how the oil and gas trade representation group, the Colorado Oil and Gas Association, sought, and succeeded, in stopping a potent legal threat to its ability to control Colorado government at all levels; about how justice was not served in a Boulder court, and how the public was fooled into thinking it was; and about some legal slight of hand was used to keep the status quo from changing, to deceive and coddle the public into thinking that all is well because stability in how the oil and gas industry is regulated has been preserved.  It is a tale that few know, but deserves a spotlight of attention in these dark times.

Our tale begins November 5, 2013, when the Lafayette Community Rights Act passed by over 60 per cent in my town, which gave rights to Nature, said that corporations are not people (in direct conflict with Citizens United, on purpose), and banned oil and gas extraction with the city limits. These bold actions were not based on simple declaration of intent, but on carefully defined community rights. This was explicitly the intent of the authors of the Act, which was East Boulder County United, a nonprofit that was formed with the intent to do something, using the legal strategy of community rights, which has been carefully developed by the Community Environmental Legal Defense Fund (CELDF) based on years of legal research. To find out more about them, see celdf.org.

The Act pointed out where in the Colorado Constitution how the creation of community rights should be allowed with regard to home rule communities. We had worked hard for over a year to make this happen: first, by defining the wording of the Act with CELDF's assistance, worked with the state and local offices for weeks to get the wording of the ballot measure approved, learned how to mount and implement a petition campaign, recruited dozens of volunteers to help, got the required number of signatures by the deadline, and then, lo and behold, got it on the ballot. Then we campaigned to publicize this fact, and educate the public on this important ballot measure. Then the long-awaited night came...and the crowd that I was with at the Nyland community house that night cheered at this stunning victory when the results of the vote were announced. We had no idea of whether this unprecedented act of legislation had a chance of succeeding, but it did so in decisive fashion. The people of Lafayette had spoken!

Our euphoria was short-lived. Within a month, the city of Lafayette was sued by the Colorado Oil and Gas Association (COGA), on the basis that state law, based on the Colorado Oil & Gas Act, preempts the town's citizens from regulating oil and gas development. However, if you examine this brief you will not find a single mention of community rights on which the Act was based. The definition of those community rights was carefully defined as based on constitutional rights as guaranteed by the Colorado and United States constitutions; but despite this careful construction of legal argument, the COGA brief fails to mention it. Could it be on purpose, by design, perhaps because...COGA's lawyers were afraid to mention this?

Then, about six months later, Colorado 20th Judicial District judge D. D. Mallard agreed with COGA's brief that state law preempted Lafayette from regulating oil and gas. Again, if you read the judge's decision, there is no mention of community rights. The judge simply repeated previous court cases about statutory state law, i.e. based on statutes passed by the Colorado legislature. But this is what district judges are supposed to do: decide on the merits of a plaintiff's brief -- which, in this case, omitted the most important part of the legislation.

And I would venture to guess that this was the intent of the COGA brief and its legal strategy, and this judge fell into the trap: to completely bypass the community rights section of the Lafayette Community Rights Act, which is based on constitutional rights and would supersede the statutory legal arguments.

There was an attempt to appeal this glaringly wrong decision; but not by the city attorney of Lafayette, David Williamson. No, it was private citizens, members of the non-profit East Boulder County United, who were familiar with the community rights nature of the case who attempted to appeal the decision. And in this appeal, the nature of the constitutional basis of this law was, again, carefully pointed out. Unfortunately, due to lack of resources to continue to fund the appeal, the organization was unable to continue the appeal, and were forced to withdraw in fall of 2014.

Then came the Colorado Supreme Court decision on May 2, 2016 that the attempts by Longmont and Fort Collins to ban fracking were illegal, and preempted by state law. Numerous news stories covered the important decision. These cities did appeal their cases, because their city councils and city attorneys were behind their appeals. Neither of those bans were based on constitutional rights, however, and so the decision by the court was hardly surprising.

And since Lafayette's council and city attorney chose not to appeal their COGA case, and private citizens had not the means to continue the appeal, the fundamental nature of the Lafayette Community Rights Act, based on constitutional rights, has never had its day in court. But should some day that happen, I would hope the Colorado Supreme Court justices do their duty and consider the entire Act, and give a measured and fully considered legal opinion of how our community's legal rights were defined, and give Lafayette's citizens their real day in court -- and have justice be truly served.






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