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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 05/22/2018 - CONSIDER JOINING THE AMICUS CURIAE BRIEF TO BE FILAgenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY May 22, 2018 City Council STAFF Cassie Archuleta, Senior Environmental Planner Lucinda Smith, Environmental Sustainability Director Brad Yatabe, Legal SUBJECT Consider Joining the Amicus Curiae Brief To Be Filed By Boulder County and Other Local Governments in Support of the Respondents in the Colorado Supreme Court Case Colorado Oil and Gas Conservation Commission v. Martinez EXECUTIVE SUMMARY The purpose of this item is to consider authorizing the City Attorney to join Boulder County and other local governments in an amicus curiae brief (the “Amicus Brief”) to be filed in the Colorado Supreme Court case Colorado Oil and Gas Conservation Commission v. Martinez (“Martinez”), and a motion to direct staff action on the request. At issue are differing interpretations of the scope of authority delegated to the Colorado Oil and Gas Conservation Commission (the “COGCC”) by the Colorado General Assembly in the Oil and Gas Conservation Act (the "Act"). The filing deadline for amicus briefs in support of the Respondents is May 25, 2018, and the deadline for the City to respond to Boulder County is May 23. STAFF RECOMMENDATION N/A BACKGROUND / DISCUSSION Boulder County has asked if the City of Fort Collins is interested in signing the Amicus Brief that Boulder County and other governmental entities will be submitting in Martinez. An amicus curiae brief is submitted by non-parties to a case to assist a court in adjudicating a matter by providing information, expertise, and argument. The Amicus Brief supports the Respondents and requests that the Court affirm the court of appeals ruling that the COGCC misinterpreted its statutory authority as requiring a balance between oil and gas development and public health, safety and welfare. As of May 9, 2018, thirteen entities have joined the Amicus Brief: (1) Counties: Boulder, Gunnison, San Miguel, Eagle; (2) City and County of Broomfield; (3) Cities/Towns: Boulder, Carbondale, Erie, Lafayette, Longmont, Louisville, Westminster, Basalt. Additional entities may join the Amicus Brief. Martinez is centered around an interpretation of the COGCC’s authority under the Act. The Act established the COGCC and describes its purpose and powers. The legislative declaration, § 34-60-102.(1)(a)(I) of the Act, states that it is declared to be in the public interest to: Foster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources. Agenda Item 1 Item # 1 Page 2 The essential question in Martinez is whether the Act should be interpreted as fostering oil and gas development to the extent it is protective of public health, safety and welfare, or if it should be interpreted as fostering a balance between oil and gas development and the protection of public health, safety and welfare. TIMELINE This case began in November 2013 when Xiuhtezcatl Martinez of Boulder, and several other teenagers, asked the COGCC to consider a new rule requiring that permits for oil and gas drilling not be issued “unless the best available science demonstrates, and an independent third-party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.” In May 2014, the COGCC denied the request, stating in part that the proposed rule would mandate action that was beyond their statutory authority. This decision was appealed to the Denver District Court. In February 2016, the COGCC decision was affirmed by the Denver District Court which agreed that the COGCC lacked authority to consider the proposed rule, in part because the Court agreed that the Act requires that the COGCC balance the development of oil and gas resources with protection of public health, safety, and welfare. In March 2017, the Colorado Court of Appeals overturned the District Court’s interpretation of the Act. The Court of Appeals interpreted the Act as fostering oil and gas development subject to the protection of public health, safety and welfare, rather than development that is “balanced” with these protections. In February 2018, the Colorado Supreme Court agreed to address the question, “Whether the court of appeals erred in determining that the Colorado Oil and Gas Commission misinterpreted section 34-60-102(1)(a)(I), C.R.S. as requiring a balance between oil and gas development and public health, safety, and welfare.” The filing deadline for amicus curiae briefs in favor of the Respondents (in support of the Court of Appeals decision) is May 25, 2018. REQUEST TO JOIN AMICUS BRIEF Boulder County has asked whether the City will join the Amicus Brief in support of the Respondents (Martinez et al.). The Petitioners are the COGCC, the American Petroleum Institute, and the Colorado Petroleum Association. The draft Amicus Brief (attached) asserts two principal arguments regarding why the Supreme Court should uphold the appeals court decision that was in favor of the Respondents, Martinez et al: 1. That state and local governments, and state regulatory agencies, have an obligation to exercise regulatory powers in a manner that protects public health and safety. In light of this obligation, the appeals court interpretation of § 34-60-102(1)(a)(I), C.R.S., is correct and is not a radical change under the law. 2. The appeals court decision is consistent with prior Supreme Court decisions. The filing deadline for briefs in favor of the Respondents is May 25, 2018, and the deadline to respond to Boulder County regarding whether the City wishes to join in the Amicus Brief is May 23. CURRENT POLICY The request to join the Amicus Brief aligns with statements in the Legislative Policy Agenda (“LPA”) and City Plan regarding protection of human health, public welfare, and the environment. Agenda Item 1 Item # 1 Page 3 The underlying objectives of the Amicus Brief are aligned with these aspects of the City’s 2018 LPA: • Energy: (2) Supports reductions in environmental damage caused by energy extraction and production. • Air Quality. Supports programs and policies that improve public health and air quality, and support rapid attainment of National Ambient Air Quality Standards, including ozone. • Oil and Gas: (3) Supports state, federal, and academic studies evaluating impacts of oil and gas operations on human health and property values. Additionally, the objectives are aligned with the following principals adopted in the 2011 City Plan: • Principle ENV 8: Continually improve Fort Collins’ air quality. • Principle ENV 10: The City will, within the scope of its ability, strive to protect and improve the air so it is healthy to breathe and free of levels of pollutants that harm human health (and public welfare). CITY FINANCIAL IMPACTS This request is not directly associated with pending legislation and is principally a policy decision about whether to sign on to support the point of view expressed. Signing on with another coordinating entity requires minimal staff time and resources, and no additional impacts are expected. BOARD / COMMISSION RECOMMENDATION Due to timing, no Board or Commission recommendations have been requested or received. PUBLIC OUTREACH Due to timing, no public outreach has been conducted by staff. SUGGESTED MOTION 1. If the Council wishes to join the Amicus Brief, the following motion is suggested: I move that the Fort Collins City Council join the amicus curiae brief in substantially the same form that City staff has presented to Council and direct the City Attorney to sign said amicus brief. 2. If the Council does not wish to join the Amicus Brief, Council can either make no motion or vote down the above motion. ATTACHMENTS 1. Amicus Curiae Brief in Support of Respondents (PDF) SUPREME COURT, STATE OF COLORADO Colorado State Judicial Building 2 East 14th Avenue, Suite 300 Denver, Colorado 80203 ▲ COURT USE ONLY ▲ Case Number: 2017SC297 Colorado Court of Appeals Case Number 16CA0564 Opinion by Judge Fox; Judge Vogt concurring; Judge Booras dissenting City and County of Denver District Court No. 14CV32637 Judgment by Judge J. Eric Elliff Petitioners: Colorado Oil and Gas Conservation Commission and American Petroleum Institute and Colorado Petroleum Association v. Respondents: Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, and Emma Bray, minors appearing by and through their legal guardians Tamara Roske, Bindi Brinkley, Eleni Deering, Jasmine Jones, Robin Ruston, and Diana Bray. ATTACHMENT 1 Attorney for Amicus Curiae Boulder County David Hughes, #24425 Deputy County Attorney Katherine A. Burke, #35716 Assistant County Attorney BOULDER COUNTY ATTORNEY P. O. Box 471, Boulder, CO 80306 Phone Number: 303-441-3190 Email: dhughes@bouldercounty.org kaburke@bouldercounty.org Attorney for Amicus Curiae Town of Basalt NAME ADDRESS PHONE EMAIL Attorney for Amicus Curiae City of Boulder Thomas A. Carr, #42170 City Attorney P.O. Box 791 Boulder, CO 80306 Phone Number: (303) 441-3020 Fax Number: (303) 441-3859 E-mail: carrt@bouldercolorado.gov Attorney for Amicus Curiae City and County of Broomfield Patricia W. Gilbert #20818 City and County Attorney City and County of Broomfield ADDRESS ADDRESS Phone Number: E-mail:pgilbert@broomfield.org Attorney for Amicus Curiae Town of Carbondale Mark Hamilton #_______ Holland & Hart LLP 600 East Main Street, Suite 104 Aspen, CO 81611 Phone Number: (970) 429-6890 E-mail: mehamilton@hollandhart.com Attorney for Amicus Curiae Eagle County Bryan Treu #29577 Eagle County Attorney PO Box 850 Eagle, Colorado 81631 Phone Number: (970) 328-8685 E-mail: bryan.treu@eaglecounty.us Attorney for Amicus Curiae Town of Erie Mark R. Shapiro, #6953 Mark R. Shapiro, P.C. Town Attorney for the Town of Erie 1002 Walnut Street, Suite 203A Boulder, CO 80302 Phone Number: (303) 443-3234 E-mail: mark@mshapirolaw.com Attorney for Amicus Curiae Gunnison County David Baumgarten, #6050 Gunnison County Attorney Matthew Hoyt #51792 Assistant County Attorney Gunnison County 200 E. Virginia Avenue Gunnison, Colorado 81230 Phone Number (970) 651-5300 Fax Number: (970) 641-7696 E-mail: DBaumgarten@gunnisoncounty.org mhoyt@gunnisoncounty.org Attorney for Amicus Curiae City of Lafayette David S. Williamson, #8530 Williamson & Hayashi, LLC 1650 38th Street, Ste. 103W Boulder, CO 80301 Phone Number: (303) 443-3100 E-mail: dwilliamson@wandhlaw.com Attorney for Amicus Curiae City of Longmont Daniel Kramer, # 43572 Assistant City Attorney City of Longmont 408 Third Avenue Longmont, CO 80502 Phone Number: (303) 651-8619 E-mail: dan.kramer@longmontcolorado.gov Attorney for Amicus Curiae City of Louisville Samuel J. Light, #22883 Light Kelly P.C. 101 University Blvd., Suite 210 Denver, CO 80206 Phone Number: (303) 298-1601 E-mail: slight@lightkelly.com Attorney for Amicus Curiae Pitkin County John Ely, #14067 Pitkin County Attorney 530 East Main Street, Suite 301 Aspen, CO 81611 Phone Number: (970) 920-5190 E-mail: john.ely@pitkincounty.com Attorney for Amicus Curiae San Miguel County Amy T. Markwell, #36434 P.O. Box 791 Telluride, CO 81435 Phone Number: 970-728-3879 E-mail: amym@sanmiguelcountyco.gov Attorney for Amicus Curiae City of Westminster David Frankel, #26314 City Attorney 4800 West 92 nd Avenue Westminster, CO 80031 Phone Number: (303) 658-2234 E-mail: dfrankel@cityofwestminster.us LOCAL GOVERNMENTS’ AMICUS CURIAE BRIEF IN SUPPORT OF THE RESPONDENTS Certificate of Compliance I hereby certify that this brief complies with C.A.R. 29 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that the amicus brief complies with the applicable word limit set forth in C.A.R. 29(d) and contains _____ words. The amicus brief complies with the content and form requirements set forth in C.A.R. 29(c). I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 29 and 32. /s/ Katherine A. Burke i TABLE OF CONTENTS Page INTERESTS OF THE AMICUS CURIAE PARTIES .............................................. 1 STATEMENT OF THE CASE .................................................................................. 2 ARGUMENT ............................................................................................................. 3 I. A requirement that government regulations protect public health and safety is not a change in Colorado law. ........................................................ 3 II. The decision below is consistent with prior decisions of this Court and other divisions of the court of appeals. .......................................................... 5 CONCLUSION .......................................................................................................... 9 ii TABLE OF AUTHORITIES Cases Page(s) Chase v. Colo. Oil and Gas Conservation Comm’n, 284 P.3d 161 (Colo. App. 2012) ........................................................................................... 7, 8, 9 Fort Collins v. Colo. Oil and Gas Ass’n, 369 P.3d 586 (Colo. 2016) ................... 1, 7 Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997) .................... 6, 7, 9 Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934) ................................... 5 Longmont v. Colo. Oil and Gas Ass’n, 369 P.3d 573 (Colo. 2016) .................. 5, 6, 9 Love v. Bell, 465 P.2d 118 (Colo. 1970) .................................................................... 4 Martinez v. Colo. Oil and Gas Conservation Commn., 2017 COA 37 ................. 3, 6 Town of Dillon v. Yacht Club Condominiums Homeowners Ass’n, 325 P.3d 1032 (Colo. 2014) ............................................................................................................ 4 Town of Holyoke v. Smith, 226 P. 158 (Colo. 1924) ................................................. 4 W. Colo. Power Co. v. Pub. Utils. Comm’n, 411 P.2d 785 (Colo. 1966) ................. 4 Statutes § 29-20-104(1)(d) and (h), C.R.S............................................................................... 1 § 30-11-101(2), C.R.S. ............................................................................................... 1 § 31-15-103, C.R.S. ................................................................................................... 2 § 31-15-401(b), C.R.S. ............................................................................................... 2 iii § 31-23-301, C.R.S. ................................................................................................... 2 § 34-60-102, C.R.S. (1995) ........................................................................................ 7 §§ 34-60-101 to -130, C.R.S. (2016) ......................................................................... 2 Other Authorities 2007 Colo. Legis. Serv. Ch. 312 (H.B. 07 –1298)(WEST) ....................................... 7 Colorado Constitution Rules C.A.R. 49.................................................................................................................... 9 1 INTERESTS OF THE AMICUS CURIAE PARTIES The Board of County Commissioners of Boulder County, the Town of Basalt, the City Council of the City of Boulder, the City Council of the City and County of Broomfield, the Board of Trustees of the Town of Carbondale, the Board of County Commissioners of Eagle County, the Board of Trustees of the Town of Erie, the Board of County Commissioners of Gunnison County, the City Council of the City of Lafayette, the City Council of the City of Longmont, the City Council of the City of Louisville, the Board of County Commissioners of Pitkin County, the Board of County Commissioners of San Miguel County, and the City Council of the City of Westminster are the governing bodies of Colorado counties, cities, and towns, all political subdivisions of the State of Colorado. The counties, as local government entities, are charged with protecting the public health, safety, and welfare of their residents. See § 30-11-101(2), C.R.S.; see also § 29-20-104(1)(d) and (h), C.R.S. The City and County of Broomfield is a county and municipal corporation, with all the powers and responsibilities applicable to municipalities and counties, and as such, Broomfield seeks to protect the health, safety, and welfare of its citizens. See Colo. Const. art. XX, § 10. 2 The cities of Boulder, Carbondale, Lafayette, Longmont, Louisville, and Westminster are Colorado home-rule cities, with police power granted pursuant to the Colorado Constitution, article XX, to adopt regulations to protect the health, safety, and welfare of the public. See, e.g., City and County of Denver v. Qwest Corporation, 18 P.3d 748, 755 (Colo. 2001) (“If there is a rational basis for legislating to protect the health, safety, or welfare of the citizens of a municipality, a home rule city may constitutionally do so.”) (internal citation omitted). The home-rule cities want to ensure that COGCC properly fulfills its statutory duties in Colorado’s mixed state and local regulation of oil and gas development. The towns of Erie and Basalt are statutory towns charged with protecting the public health, safety, and welfare of their residents. See §§ 31-15-103, 31-15- 401(b), 31-23-301, C.R.S. Erie’s and Basalt’s residents are concerned about the public health and environmental effects of oil and gas operations near their homes, schools, businesses, and recreation areas. Because oil and gas development is a mixed issue of state and local concern, see Fort Collins v. Colo. Oil and Gas Ass’n., 369 P.3d 586, 591 (Colo. 2016), the amici parties’ land use and oil and gas permitting functions are affected by the manner in which the Colorado Oil and Gas Commission (“COGCC”) carries out its 3 statutory rule-making and permitting duties. Therefore, all amici parties have interests in this litigation. STATEMENT OF THE CASE Based on clear and unambiguous language in the Colorado Oil and Gas Conservation Act, Sections 34-60-101 to -130, C.R.S. (the “Act”), the court of appeals held that the COGCC has the authority to consider a proposed rule promoting public health and protecting the environment. This holding followed the well-settled legal principle that a primary function of state government is to protect public health, safety, and welfare. As shown below, this Court should affirm the appellate ruling because it is well-reasoned and neither changes existing law nor conflicts with prior decisions of other appellate divisions or this Court. ARGUMENT I. State and local governments must exercise their regulatory power in a manner that protects public health and safety. Petitioners describe the decision below as a radical and sweeping change in the law that will have drastic impacts. Intervenor/Petitioners call the decision “novel.” Lost in this rhetoric is the fact that lawmaking with the express purpose of protecting the public health, safety, and welfare is the foundation of the police power for state agencies, just as it is for local governments. 4 When it adopted the Act, including its subsequent amendments, the General Assembly exercised its police power. See W. Colo. Power Co. v. Pub. Utils. Comm’n, 411 P.2d 785, 794 (Colo. 1966) (“The power to regulate entities affected with a public interest is a function of the police power of the state.”); see also Town of Dillon v. Yacht Club Condominiums Homeowners Ass’n, 325 P.3d 1032, 1041-42 (Colo. 2014) (police power includes “the power to anticipate and prevent dangers”). “[T]he police power of the state, which is exercised in the public interest . . . is an attribute of sovereignty, governmental in character, but its use is restricted to matters which relate to the health, safety, or general welfare of the people.” Town of Holyoke v. Smith, 226 P. 158, 161 (Colo. 1924); see also Love v. Bell, 465 P.2d 118, 121 (Colo. 1970) ( “[T]he provisions of [a] statute must be reasonably related to the public health, safety, and welfare.”) Like the General Assembly, state regulatory agencies exercise the police power. Numerous legislative grants of authority to state agencies establish public health, safety, and welfare as the fundamental justification for the agencies’ function, even if that function includes the very different goal of promoting an aspect of the state economy. See, e.g., § 35-28-102, C.R.S. (declaring that the regulation of the marketing of agricultural commodities “prevent[s] economic waste” and promotes equitable purchase power, all “for the purpose of protecting 5 the health, peace, safety, and general welfare”); § 12-55.5-101, 103, C.R.S. (authorizing division of professions and occupations to register and regulate guides and outfitters to both promote outdoor sports and “safeguard[] the health, safety, welfare, and freedom from injury” of participants); § 37-95-102(1), C.R.S. (creating the Colorado water resources and power development authority to administer water conservation projects, create jobs and promote economic welfare “for the protection of the public health, safety, convenience, and welfare”); § 8-20- 102, C.R.S. (authorizing director of division of oil and public safety to make rules regulating liquid and gas fuel products that are “reasonably necessary for the protection of the health, welfare, and safety of the public”). Like state agencies, local governments are required to exercise their regulatory power in a manner deemed necessary to provide for public health, safety, and welfare. See § 30-11-101(2), C.R.S. (granting counties the authority to adopt and enforce ordinances and resolutions “regarding health, safety, and welfare issues”); §31-15-103, C.R.S. (granting municipalities the power “to make and publish ordinances . . . which are necessary and proper to provide for the safety, [and] preserve the health . . . of such municipality and the inhabitants thereof”). 6 State agencies and local government successfully exercise their regulatory authority within the police power framework of protecting the public health, safety, and welfare without causing the kind of catastrophic disruptions of commerce or industry predicted by Petitioners. For example, counties and cities regulate the use of land within their jurisdictions. Land development continues to occur throughout the state despite the legislative requirement that zoning regulations protect the public health, safety, welfare, and the environment. See Colorado Springs v. Securecare Self Storage, Inc., 10 P.3d 1244, 1255 (Colo. 2000) (zoning ordinances are generally valid regulatory exercise of police power to protect public health, safety, and welfare). The court of appeals decision in the instant case simply means that the COGCC should exercise its authority in the same way other Colorado regulatory entities do. While the decision below might ultimately result in changes to existing COGCC rules or procedures that inadequately protect public health and safety, it will not result in a change in fundamentals of law related to the legislative process and rulemaking. If the COGCC has adopted rules and regulations that benefited private industry without protecting public health, safety, and welfare, it did so at its own risk. This Court should affirm the court of appeals ruling that clarifies the meaning of the Act in conformance with the legal mainstream. 7 II. The decision below is consistent with prior decisions of this Court and other divisions of the court of appeals. The court of appeals decision does not conflict with decisions of this Court or the court of appeals. In their Petition for Writ of Certiorari, Petitioners argued that the decision below conflicts with three specific court rulings. However, careful reading demonstrates the decision is consistent with those opinions and existing, relevant case law and should not be overturned. First, in Longmont v. Colo. Oil and Gas Ass’n., 369 P.3d 573 (Colo. 2016), the Court undertook a preemption analysis with the underlying assumption that the COGCC enacted valid rules within its authority under the Act. In particular, the Court observed that the COGCC enacted fracking rules “to prevent waste and to conserve oil and gas in the State of Colorado while protecting public health, safety, and welfare.” Longmont, 369 P.3d at 584 (emphasis added). The remainder of the opinion focused on the narrower issue of state preemption over the city’s ordinances. Thus, to the limited extent the Longmont opinion addressed issues relevant to this case, it supports the court of appeals opinion that public health, safety, and welfare are paramount in the context of COGCC rulemaking. Like Longmont, the holding in Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997), addresses an issue unrelated to the decision below and does not conflict with the court of appeals decision at issue here. The Court in Gerrity 8 determined that the Act did not give rise to a private cause of action. In discussing the Act, the Court stated “[w]e recognize that the purposes of the Act are to encourage the production of oil and gas in a manner that protects public health and safety and prevents waste.” 946 P.2d at 925. The Petitioners argued that by using the plural “purposes” rather than the singular “purpose,” the Gerrity Court interpreted Section 34-60-102, C.R.S. (1995) 1, to mean that oil and gas production and protecting public health and safety were separate purposes. However, the Gerrity Court never specified which “purposes” it was referring to. Moreover, the Court was summarizing the Act, not interpreting it. At best, the language is dicta. More recently, this Court characterized oil and gas production as a single goal. “This…materially impedes the state's goal of permitting each oil and gas pool in Colorado to produce up to its maximum efficient rate of production, subject to the prevention of waste and consistent with the protection of public health, safety, and welfare.” Fort Collins v. Colo. Oil & Gas Ass’n., 369 P.3d 586, 593 (Colo. 2016) (emphasis added). Thus, even if Gerrity raised questions by using the word “purposes,” Fort Collins subsequently clarified the issue by referring to 1 The Court in Gerrity referenced a prior version of the statute at issue. The General Assembly amended section 34-60-102, C.R.S. in 2007. See 2007 Colo. Legis. Serv. Ch. 312 (H.B. 07 –1298)(WEST). 9 production as a single “goal” that must be pursued consistently with the protection of public health, safety, and welfare. Finally, Chase v. Colo. Oil and Gas Conservation Comm’n, 284 P.3d 161 (Colo. App. 2012), supports, rather than conflicts with, the decision below. A division of the court of appeals in Chase recognized that “[t]he 1994 amendments to the Conservation Act enlarged the COGCC’s focus . . . to include consideration of environmental impact and public health, safety, and welfare.” 284 P.3d at 166. The Chase division characterized protecting public health, safety, and welfare as an “expanded charge” to the COGCC. Id. Further, the court did not describe the COGCC’s rules as achieving balance between fostering development and protecting public health and safety, but rather stated “the COGCC’s rules protect the health, safety, and welfare of the general public during the drilling, completion, and operation of oil and gas wells and producing facilities.” Id.; see also id. at n.16 (quoting COGCC Rule 601 to note that COGCC safety rules were “promulgated to protect the health, safety and welfare of the general public”). The issue on appeal in Chase was whether the COGCC could consider any “factors other than occupancy in determining whether land should be categorized as a Designated Outdoor Activity Area, or DOAA.” Chase, 284 P.3d at 170. The division concluded that the COGCC had the power to consider public safety in 10 making a DOAA determination. Id. However, it did not state that any factor was more important than public health, safety, and welfare and it did not consider the opposite question — whether the COGCC could ignore public health and safety in reaching its decision. Thus, nothing in Chase conflicts with the decision below. As shown above, the decision below does not conflict with Longmont, Gerrity, or Chase. CONCLUSION Like other state agencies and local governments throughout Colorado, the primary duty of the COGCC is to protect the public health, safety, and welfare, not to “balance” it against the desires of for-profit corporations. For the reasons stated above, the amici parties respectfully assert that the Court should affirm the ruling below. Respectfully submitted this ____th day of _____, 2018. /s/ ______________ Katherine A. Burke, #35716 David Hughes, #24425 11 BOULDER COUNTY ATTORNEY’S OFFICE Attorneys for Amicus Curiae Boulder County /s/ __________, #__________ Attorney for Amicus Curiae Town of Basalt /s/ Thomas A. Carr Thomas A. Carr, #42170 Boulder City Attorney Attorney for Amicus Curiae City of Boulder /s/ Patricia W. Gilbert Patricia W. Gilbert #20818 Broomfield City and County Attorney Attorney for Amicus Curiae City and County of Broomfield /s/ Bryan Treu Bryan Treu, #____________ Eagle County Attorney Attorney for Amicus Curiae Eagle County /s/ Mark R. Shapiro Mark R. Shapiro, #6953 Mark R. Shapiro, P.C. Attorney for Amicus Curiae Town of Erie 12 /s/ David Baumgarten David Baumgarten, #6050 Matthew Hoyt, #51792 Gunnison County Attorney’s Office Attorney for Amicus Curiae Gunnison County /s/ David S. Williamson David S. Williamson, #8530 Williamson & Hayashi, LLC Attorney for Amicus Curiae City of Lafayette /s/ Daniel Kramer Daniel Kramer, #43752 Assistant Longmont City Attorney Attorney for Amicus Curiae City of Longmont /s/ Samuel J. Light Samuel J. Light, #22883 Light Kelly P.C. Attorney for Amicus Curiae City of Louisville /s/ John Ely John Ely, #14067 Pitkin County Attorney Attorney for Amicus Curiae Pitkin County /s/ Amy T. Markwell Amy T. Markwell, #36434 13 San Miguel County Attorney Attorney for Amicus Curiae San Miguel County /s/ David Frankel David Frankel, #26314 Westminster City Attorney Attorney for City of Westminster CERTIFICATE OF SERVICE The undersigned hereby certifies that on this _____th day of _________, 2018, the foregoing LOCAL GOVERNMENTS’ AMICUS CURIAE BRIEF IN SUPPORT OF THE RESPONDENTS was served via Colorado Courts E-Filing on all counsel who have consented to electronic service in this case. /s/ Cathy Peterson Cathy Peterson