Boulder County Starts New Legal Round Over Open Space Drilling

BOULDER, CO - Boulder County Commissioners filed two lawsuits Tuesday against drilling companies Crestone Peak Resources and 8 North LLC, adding to their growing roster of legal claims against the oil and gas industry. Locally, this is the second suit the county has filed against 8 North in the last month. The commissioners are also responsible for April litigation against drilling giants Suncor and Exxon Mobil, seeking damages for the companies' contributions to global climate change.

The Crestone suit brings a complaint against 140 wells on three proposed drilling pads that would lie on Boulder County Open Space or county-owned conservation easements. Conservation easements are voluntary agreements between a landowner and the county that restricts how a piece of land can be used. Boulder County uses them to protect agricultural land, scenic open space, historical structures, and land that provides critical habitat for animal and plant life. When a property is sold, the easement remains with that property in perpetuity.

It gets a bit complicated, because in some cases, whether a parcel is subject to a conservation easement or is Open Space that the county owns outright, mineral rights have already been leased or sold separately from the land itself, and this opens the door for the drilling companies to enter otherwise-protected areas. In its complaint against Crestone, the county alleges that two of the mineral leases that Crestone claims on its proposed drilling sites have expired due to lack of production, and that the size and scale of the proposed drilling operations is incompatible with the company's mineral leases. The suit also claims that the drilling would run counter to the status of the land as conservation easements because it would "threaten the conservation values for which they were established."

Colorado Oil and Gas Conservation Commission director Julie Murphy issued a statement on July 30 stating that the proposed sites were suitable for production. However, “Crestone said they picked these locations in part because the surface has not been developed,” said County Commissioner Cindy Domenico in yesterday's statement. “The county bought land and conservation easements to preserve agricultural and scenic values, not to hold the land open for massive drilling sites.”

Concerns about impacts on conservation easements also affects proposed drilling by 8 North. The county disputes both a proposed 32-well 8 North pad in Weld County that is located on a Boulder County conservation easement and a 20-well pad slated for the Town of Erie. Lafayette Mayor Pro Tem Jamie Harkins thanked the county for its actions in a Facebook post Tuesday evening, noting that the proposed site was "right outside of Lafayette's border."

"The nature of oil and gas drilling has changed dramatically in recent years, resulting in intensive, large-scale surface impacts to enable multi-mile long directional drilling,” explained County Commissioner Elise Jones in a statement. “Those old leases didn’t envision that the property could be harmed by a multi-well mega-pad used to frack minerals located miles away. It’s our duty to safeguard the environment and people of Boulder County and these lawsuits are our implementation of that responsibility. No one is above the law – including oil and gas companies.”

The Colorado Oil and Gas Association Industry group disputes that take. "Multiple lawsuits paid on the backs of taxpayers are not the answer. Operators have been in close communication with the Boulder County staff and are giving every effort to find win-win scenarios," the association's spokesman Scott Prestidge said in a statement reported by the Daily Camera. "Ultimately a political agenda can't override legitimate private propriety rights, and we would hope the county would work toward mutually beneficial solutions, rather than take it to the courts."

A policy statement on oil and gas development released by the county last December foreshadowed the latest lawsuits. Though the county acknowledges it does not own the mineral rights to all Open Space parcels, it says it is committed to finding appropriate avenues to protect the conservation value of that land regardless. "County staff is continually analyzing all available legal arguments and practical actions to protect all of the resources in the county, including Open Space lands," concluded the December statement. "[Boulder County is] prepared to make all such arguments and take all such actions whenever appropriate."

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