Drilling away at fracking bans, lawsuits

Complicated election laws could overturn ban in Broomfield; lawsuits also filed in Lafayette, Fort Collins
The Colorado Statesman

The fate of hydraulic fracturing in Broomfield remains in limbo as attorneys continue to drill away at complicated and intertwining court cases that don’t exactly have to do with so-called “fracking” itself.

When Broomfield voters this November backed a five-year moratorium on fracking by only 17 votes, proponents of the temporary ban rejoiced that those in the community had heard their call.

Our Broomfield, the issue committee established to support the initiative, sent a strong message to the industry, “Don’t frack Broomfield.” The community responded by asking the city to take more time studying the potential negative impacts of fracking before allowing it in their backyards.

At first the initiative was failing by 13 votes. But a mandatory recount offered a different result, indicating the 17-vote slim margin of victory.

Since then, a lawsuit has been filed against Broomfield elections officials for alleged errors in tabulation and a failure to comply with elections laws around transparency and accountability.

The Broomfield Balanced Energy Coalition is behind the lawsuit, which has consulted the industry on its opposition to the initiative.

A Broomfield District Court judge on Wednesday continued the lawsuit against Broomfield in light of a seemingly unrelated matter to be heard by the Colorado Supreme Court.

In that case, Hanlen v. Gessler, citizens are hoping that the high court will uphold a lower court ruling ordering the clerk and recorder’s offices in Adams and Broomfield counties to count votes for an Adams County school board candidate that Republican Secretary of State Scott Gessler said were invalid.

The Supreme Court case surrounds school board candidate Amy Speers, who did not learn until the week before the election that she did not live in her school board district. A redrawing of Adams County school board boundaries in 2012 placed her outside the district.

The race was extremely political, with Speers advocating for a non-conservative approach to the school board, having been backed by the local teachers’ union. She encouraged voters to cast their ballots anyway in an effort to send a message, despite Gessler, a proud conservative, ordering that the clerks in Broomfield and Adams counties not count those votes.

Speers’ supporters were furious. They filed a lawsuit against Gessler arguing that the votes should be counted, and that if Speers won, the school board seat should be declared vacant and the board should make an appointment.

Denver District Court Judge Robert Hyatt agreed and the vote count was released. Speers had earned herself a decisive victory, beating Rico Figueroa 2-to-1.

Gessler disagrees with Hyatt’s ruling and has appealed to the Supreme Court, which has agreed to hear the case. The two sides had until Monday to file their briefs.

It may seem strange that a lawsuit around a school board election plays into a separate lawsuit regarding an election around fracking. But lawyers explain that a component of the Adams County case concerns whether a court is permitted to intervene in an election outcome after Election Day.

“If the secretary of state’s argument is adopted by the Supreme Court it would preclude this court from taking action under this statutory proceeding,” explained William Tuthill, the city and county attorney for Broomfield.

The situation is a bit odd for Broomfield. On the one hand, it’s betting on Gessler’s argument in order to avoid a legal battle over elections procedures. On the other hand, if the case were heard, then the city and county would be defending itself against Gessler’s accusations regarding administrative errors.

Broomfield must also still defend itself against a separate challenge filed in part by the Broomfield Balanced Energy Coalition that asks the court to determine whether potential tabulation errors were sufficient to change the outcome of the election. A court date for that hearing had not been set as of press time.

Both cases hinge on a blistering report issued by the secretary of state’s office on Nov. 27 in which Gessler believes Broomfield Clerk and Recorder Jim Candelarie allowed several errors in conducting the election.

The list of alleged errors include failing to correctly determine voter eligibility; instituting a faulty process to rectify problems; illegally updating voters’ addresses; illegally issuing ballots from drop-off locations away from the clerk’s office; improperly counting ballots cast by ineligible voters; and improperly rejecting ballots cast by eligible electors.

Many of the issues stem from complicated state residency requirements, including 22 days to vote in statewide and federal races; 30 days to vote in municipal elections; 30 days to vote in special district elections; and 25 days to vote in school board elections.

“Because of the differing eligibility requirements in state law, the clerk should have reviewed the list of eligible voters in Broomfield to determine when each voter moved to his or her current residence,” Gessler’s office wrote in the report. “This would have enabled the Broomfield Elections Division to send an appropriate ballot to each elector.

“Essentially, the clerk sent full ballots to all electors meeting the 22-day state residency requirement, without regard to the voters’ eligibility in local races,” the report continues. “As such, many electors received ballots with municipal or school board races for which they were not eligible to vote.”

Gessler’s office also raised concerns about voters who were prohibited from voting in races in which they were eligible, including the fracking question.

“Due in part to Broomfield’s inadequate record keeping, as of the date of this report, it remains unclear how many voters were prohibited from voting in races in which they were eligible, including Ballot Question 300,” states the report.

It also alleges that the city and county did not count ballots forwarded to Broomfield from other counties in which voters mistakenly cast their ballots outside of Broomfield.

“Though the other counties in this instance received the ballots and properly forwarded them to Broomfield, Broomfield refused to count the ballots unless the county clerk and recorder for the other county was a designated election official for a Broomfield ballot question or race,” states the report.

“Despite these explicit instructions, the clerk devised his own arbitrary scheme for counting ballots mistakenly delivered to other counties, treating voters differently with no justification and effectively disenfranchising 11 voters,” the report continues.

“Though the certification is complete the secretary of state believes the people of Broomfield deserve an accurate accounting of the conduct of the election,” Gessler’s report concludes.

The lawsuit filed by Broomfield Balanced Energy Coalition seeking to decertify the election over alleged administrative errors highlights many of Gessler’s concerns. Former Rep. Don Beezley, R-Broomfield, is named as a plaintiff. He, along with former Rep. B.J. Nikkel, R-Loveland, advised opponents through Broomfield Balanced Energy Coalition.

The group has already scored victories. On Dec. 10, Broomfield District Court Judge Francis Wasserman issued a temporary injunction ordering Broomfield to withhold certification of the election results until the court hearing.

In addition to the concerns raised by the secretary of state’s office, the lawsuit also suggests that Broomfield failed to allow election watchers to observe all stages of the election and to review election materials.

BBEC is asking for ballot logs and stubs; records from remote voter service centers; ballot bag batch tags and records; return ballot envelopes and information submitted by voters; video and audio records; electronically stored data; and undeliverable returned ballot envelopes.

“This is about ensuring election integrity by shedding light on the dark cloud of impropriety surrounding the Question 300 election and asking for public accountability and transparency in what was an extremely flawed process,” said Nikkel.

Broomfield maintains that it has substantially complied with the request, suggesting that state law prohibits it from handing over many of the requested materials.

“Those are things that are directly prohibited by the secretary of state’s rules for watchers to do, such as videotape, audiotape and photograph activities in the polling place,” said Tuthill.

“Our position is really simple,” he continued. “The watchers who are complaining about lack of access had the ability to watch everything taking place by the canvass board and the election judges.

“The difference is the people who are complaining wanted to be able to actually go and do stuff themselves, to be able to just look at documents on their own and to direct election officials as to how to conduct a recount,” Tuthill added. “The very nature of watch is you get to see what other people do… we do not believe they have a statutory right to get down on the field and start playing the game.”

Fracking cases abound

Meanwhile, similar anti-fracking initiatives passed by wider margins in Fort Collins, Boulder and Lafayette, despite big spending by pro-industry groups like the Colorado Oil and Gas Association.

The Loveland City Council has voted not to place a two-year moratorium on the ballot until a court case challenging petition signatures is settled. That case was heard on Wednesday and is now in the hands of the court. A ruling is expected within 30 days.

Fort Collins and Lafayette are already facing a legal challenge to the fracking bans passed there. Similar to a lawsuit COGA filed against Longmont for passing a ban in 2012, the association contends that the bans are illegal because state law supersedes local laws. They point to a precedent set by the Colorado Supreme Court. The Longmont challenge is ongoing.

“It’s regrettable and unfortunate that COGA had to take this action,” said Tisha Schuller, president and chief executive of COGA. “There are over 100,000 families that rely on the oil and gas industry for their livelihoods and these bans effectively stop oil and gas development.

“That COGA has had to take this action further demonstrates the huge disservice self-described ‘fractivists’ have done to our communities in promoting energy bans,” Schuller continued. “Instead of working constructively with industry and city leaders, extremists have used fear and misinformation to lure cities into passing bans which they know are illegal and will cost staff time and taxpayer money.”

East Boulder County United, which pushed the initiative in Lafayette, said the well-financed oil and gas industry is simply continuing the “legal harassment of Colorado citizens.”

“The Colorado Oil and Gas Association refuses to accept that this industry is not wanted in residential areas and places where people are raising families,” said Merrily Mazza, a member of East Boulder County United and a recently elected Lafayette City Council member.

“As the last election shows, Front Range residents are very knowledgeable about the cost to their communities and to their families health and well-being and they won’t sacrifice their health and property values for corporations’ bottom line,” added Mazza.

Activists have U.S. Rep. Jared Polis, D-Boulder, in their corner. Polis has been highly critical of the oil and gas industry and has been outspoken in his disdain for the lawsuits.

“The Colorado Oil and Gas Association… seems to think that oil companies, not you, should have the right to dictate what happens in your backyard,” Polis wrote to his constituents in a newsletter on Wednesday. “COGA has filed lawsuits against Fort Collins and Lafayette in an outrageous attempt to overturn fracking moratoriums that were decided in legitimate elections by a majority of Fort Collins and Lafayette voters.”

Polis went on to call the lawsuits “frivolous” and called on the industry to drop the legal challenges.

“If COGA wants to engage in drilling and fracking within the borders of your towns, then they are welcome to try to convince you that allowing them to do so is in your best interest,” Polis continued. “But it is unconscionable and undemocratic for them to try to circumvent your decisions by filing wasteful and indefensible lawsuits.”

In response to Polis’ concerns, COGA has invited Polis to a series of public debates. The congressman has agreed to the debates, though details are still being worked out.

“It’s no secret that my fellow Boulderite Congressman Jared Polis has long-held concerns about oil and gas development, and his latest decision to weigh in on our recent legal action highlights his anxieties,” said Schuller. “I think we would be doing his constituents and the public at large a great service if we participated in a series of public forums about Colorado’s energy future.”

Polis responded, “The communities I represent are being sued by COGA, so of course I am going to stand up on their behalf and ask COGA to drop their lawsuit and instead come to the negotiation table and find a solution that empowers local governments.

“I am looking forward to a thoughtful policy conversation with Tisha Schuller on how the will of these communities and the concerns of their citizens can be honored,” he continued. “Local governments must be empowered to exercise their land use and zoning powers to regulate the impact of oil and gas development within their boundaries.”