BRIEF OF AMICUS CURIAE MOUNTAIN STATES LEGAL FOUNDATION IN SUPPORT OF PETITIONERS

COLORADO SUPREME COURT 2 East 14th Avenue Denver, Colorado 80203 DATE FILED: April 2, 2018 6:26 PM FILING ID: 75DFA08CD629D CASE NUMBER: 2017SC297 On Certiorari to the Court of Appeals Colorado Court of Appeals, Div. V, 2016CA564 Judges Fox, Vogt, and Booras District Court, City and County of Denver, 2014CV32637, Hon. J. Eric. Elliff Colorado Oil & Gas Conservation Commission, Order No. 1-187, May 29, 2014 Petitioner: Colorado Oil and Gas Conservation Commission; And Petitioner-Intervenors: Colorado Petroleum Association, and American Petroleum Institute; v. Respondents: Xiuhtezcatl Martinez; Itzcuahtli Roske- Martinez; Sonora Binkley; Aerielle Deering; Trinity Carter; Jamirah DuHamel; and Emma Bray, minors appearing by and through their legal guardians Tamara Roske, Bindi Brinkley, Eleni Deering, Jasmine Jones, Robin Ruston, and Diana Bray. Cody J. Wisniewski (CO Bar No. 50415) MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 (303) 292-1980 (facsimile) cody@mountainstateslegal.com COURT USE ONLY Supreme Court Case No.: 2017SC297 Counsel for Amicus Curiae BRIEF OF AMICUS CURIAE MOUNTAIN STATES LEGAL FOUNDATION IN SUPPORT OF PETITIONERS

CERTIFICATE OF COMPLIANCE I hereby certify that this amicus curiae brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. The undersigned further certifies that the brief complies with C.A.R. 29(d) (amicus brief may be no more than one-half maximum length authorized for party s principal brief) and C.A.R. 28(g) (party s opening brief must contain no more than 9,500 words) because it contains 4,706 words, as computed by Microsoft Word. Finally, the undersigned acknowledges that this amicus curiae brief may be stricken if it fails to comply with any of the requirements of C.A.R. 28 and C.A.R. 32. DATED this 2nd day of April 2018. Respectfully submitted, /s/ Cody J. Wisniewski Cody J. Wisniewski (CO Bar No. 50415) MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 (303) 292-1980 (facsimile) cody@mountainstateslegal.com Attorneys for Amicus Curiae Mountain States Legal Foundation ii

TABLE OF CONTENTS CERTIFICATE OF COMPLIANCE... TABLE OF AUTHORITIES... Page ii v STATEMENT OF THE ISSUE... 1 IDENTITY AND INTEREST OF AMICUS CURIAE... 1 STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 I. THE PURPOSE OF GOVERNMENT IS TO PROTECT PRIVATE PROPERTY... 5 A. The Right To Property Is A Fundamental Right That Is Essential To Liberty... 5 B. Colorado Recognizes And Protects Property Rights In Oil And Gas... 9 II. A COURT SHOULD INTERPRET A STATUTE ACCORDING TO ITS PLAIN AND ORDINARY MEANING... 11 A. Legislative Declarations Cannot Trump The Operative Provisions Of Statutes... 11 B. The Phrase In A Manner Consistent With Is Not Synonymous With The Subordinating Phrase Subject To... 14 iii

III. IV. THE COURT OF APPEALS OPINION RAISES SERIOUS CONSTITUTIONAL ISSUES... 16 IF THE COURT OF APPEALS DECISION IS UPHELD, IT COULD HAVE A DETRIMENTAL IMPACT ON OTHER MINERAL ESTATES... 19 CONCLUSION... 22 CERTIFICATE OF SERVICE... 23 iv

Cases TABLE OF AUTHORITIES Page Alden v. Maine, 527 U.S. 706 (1999)... 7 Bd. of Cnty. Comm rs, La Plata Cnty. v. Bowen/Edwards Associates, Inc., 830 P.2d 1045 (Colo. 1992)... 1 Bd. of Cty. Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263 (Colo. 2001)... 1, 13 Bertrand v. Bd. of Cnty. Comm rs of Park Cnty., 872 P.2d 223 (Colo. 1994)... 15 City & Cty. of Denver v. Sheriff, 96 P.2d 836 (Colo. 1939)... 7 City of Fort Collins v. Colorado Oil, 369 P.3d 586 (2016)... 10 Colo. Dep t of Labor & Employment v. Esser, 30 P.3d 189 (Colo. 2001)... 19 Colorado Dep't of Revenue v. Creager Mercantile Co., 395 P.3d 741 (Colo. 2017)... 12 Colorado Motor Vehicle Dealer Bd. v. Freeman, 375 P.3d 111 (Colo. 2016)... 12 Cotting v. Godard, 183 U.S. 79 (1901)... 6 Evans Fuel Co. v. Leyda, 236 P. 1023 (Colo. 1925)... 10 v

Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997)... 10 Horne v. Dep't of Agric., 135 S. Ct. 2419 (2015)... 7 Huber v. Colo. Mining Ass n, 264 P.3d 884 (Colo. 2011)... 19 Ingram v. Cooper, 698 P.2d 1314 (Colo. 1985)... 18 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)... 9 Marsh v. People, 389 P.3d 100 (Colo. 2017)... 12 Marvin M. Brandt Revocable Trust v. United States, 134 S. Ct. 1257 (2014)... 1 Martinez v. Colorado Oil & Gas Conservation Comm n, No. 14CV32637 (D. Denver Feb. 19, 2016)... 2 Martinez v. Colorado Oil & Gas Conservation Comm n, No. 16CA0564, 2017 WL 1089556 (Mar. 23, 2017)... passim Michelin Tires (Canada) Ltd. v. First Nat l Bank of Boston, 666 F.2d 673 (1st 1981)... 15 Miller Bros. v. Dep t of Natural Res., 513 N.W.2d 217 (Mich. App. 1994)... 1 Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236 (3d Cir. 2011)... 1 Mitchell v. Espinosa, 243 P.2d 412 (Colo. 1952)... 9 vi

Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893)... 9 OXY USA Inc. v. Mesa Cty. Bd. of Commissioners, 405 P.3d 1142 (Colo. 2017)... 10 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)... 10, 17 18 People v. Enea, 665 P.2d 1026 (Colo. 1983)... 13 People v. Interest of Y.D.M, 593 P.2d 1356 (Colo. 1979)... 17 People v. Montour, 157 P.3d 489 (Colo. 2007)... 16 People v. Zapotocky, 869 P.2d 1234 (Colo.1994)... 12 Platt v. People, 201 P.3d 545 (Colo. 2009)... 12 Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d 1009 (9th 2007)... 15 16 Pub. Citizen v. U.S. Dep t of Justice, 491 U.S. 440 (1989)... 16 Rocky Mountain Fuel Co. v. Heflin, 366 P.2d 577 (Colo. 1961)... 10 Sigala v. Atencio's Mkt., 184 P.3d 40 (Colo. 2008)... 13, 14 vii

Simson v. Langholf, 293 P.2d 302 (Colo. 1956)... 9, 10 Stupak-Thrall v. U.S., 89 F.3d 1269 (6th 1996)... 15 Teague v. People, 395 P.3d 782 (Colo. 2017)... 12 Turbyne v. People, 151 P.3d 563 (Colo. 2007)... 12 Union Oil Co. of California v. Morton, 512 F.2d 743 (9th Cir. 1975)... 17 United States v. General Motors Corp., 323 U.S. 373 (1945)... 9 United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993)... 5 United States v. Lee, 106 U.S. 196 (1882)... 6 Wilkinson v. Leland, 27 U.S. 627 (1829)... 5 Statutes 1 Stat. 1 (July 4, 1776)... 6 C.R.S. 2-4-203(1)(g)... 11 12 Oil & Gas Conservation Act of 1955, ch. 208, 2... 11 Colorado Mined Land Reclamation Act, C.R.S. 34-32-101 to 34-32-127... 19 viii

C.R.S. 34-32-102(1)... 21 C.R.S. 34-32-103(7)... 20 C.R.S. 34-32-105... 19 C.R.S. 34-32-103(8)... 20 C.R.S. 34-32-109(2)... 20 C.R.S. 34-32-112... 20 The Colorado Land Reclamation Act for the Extraction of Construction Materials, C.R.S. 34-32.5-101 to 34-32.5-125... 20 C.R.S. 34-32.5-102(1)... 21 C.R.S. 34-32.5-103(3)... 20 C.R.S. 34-32.5-109... 20 The Colorado Surface Coal Mining Reclamation Act, C.R.S. 34-33-101 to 34-33-137... 20 C.R.S. 34-33-102... 21 Colorado Oil and Gas Conservation Act, C.R.S. 34-60-101 to 34-60-130... 2, 10, 15 C.R.S. 34-60-101(1)(a)(I)... 3, 15 C.R.S. 34-60-102(1)(a)(I)... 1, 3, 14 C.R.S. 34-60-102(1)(a)(II)... 11, 14 C.R.S. 34-60-102(1)(a)(III)... 11, 14 C.R.S. 34-60-106(2)(d)... 13 ix

Rules C.R.S. 34-60-107... 11 C.A.R. 28... C.A.R. 28(g)... C.A.R. 29(d)... C.A.R. 32... ii ii ii ii Other Authorities 1 Commentaries on the Laws of England (1765)... 7 1 Records of the Federal Convention of 1787 (Max Ferrand ed., 1911)... 8 Bernard H. Siegan, Economic Liberties and the Constitution (2d ed. 2006)... 6, 7 Black s Law Dictionary (5th ed. 1979)... 15 Black s Law Dictionary (10th ed. 2014)... 15 Charles Lindblom, Politics and Markets (1977)... 8 D. Benjamin Barros, Property and Freedom, 4 NYU J.L. & Liberty (2009)... 8, 9 James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (2d ed. 1998)... 7, 9 James W. Ely, Jr., The Marshall Court and Property Rights: A Reappraisal, 33 John Marshall L. Rev. 1023 (2000)... 8 James Madison, Property, The National Gazette (Mar. 27, 1792)... 8 x

James Madison, 14 The Papers of James Madison (R. Rutland ed., 1983)... 8 John Locke, Second Treatise of Government (1690) (C. B. Macpherson ed., 1980)... 5, 6 John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (1986)... 7 Keith Schneider, What Happened in the Nordhouse Case, Great Lakes Bulletin News Service (Apr. 19, 1997)... 18 Magna Carta, Chapter 39 (1215)... 6 Magna Carta, Chapter 29 (1225)... 6 Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985)... 9 Webster s Third New Int l Dictionary Unabridged (2002)... 15 xi

STATEMENT OF THE ISSUE Whether the Court of Appeals erred in determining the Colorado Oil and Gas Commission misinterpreted C.R.S. 34-60-102(1)(a)(I) as requiring a balance between oil and gas development and public health, safety, and welfare. IDENTITY AND INTEREST OF AMICUS CURIAE Mountain States Legal Foundation ( MSLF ) is a nonprofit, public-interest legal foundation organized under the laws of the State of Colorado. MSLF is dedicated to bringing before the courts those issues vital to the defense and preservation of individual liberty, the right to own and use property, the free enterprise system, and limited and ethical government. Since its creation in 1977, MSLF and its attorneys have actively participated in litigation to protect property, including the right to develop mineral estates. See e.g., Marvin M. Brandt Revocable Trust v. United States, 134 S. Ct. 1257 (2014); Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236 (3d Cir. 2011), as amended (Mar. 7, 2012); Miller Bros. v. Dep t of Natural Res., 513 N.W.2d 217 (Mich. App. 1994); Bd. of Cnty. Comm rs, La Plata Cnty. v. Bowen/Edwards Associates, Inc., 830 P.2d 1045 (Colo. 1992) (en banc). As fully demonstrated below, the principle function of government is to protect property, which is essential to liberty. It is the responsibility of the 1

judiciary to protect property by enforcing the plain meaning of statutes and not rely on legislative declarations to reach absurd and unconstitutional results. STATEMENT OF THE CASE In late 2013, several minors, through their legal guardians, filed a petition for rulemaking with the Colorado Oil and Gas Conservation Commission ( Commission ). The minors sought to ban all new oil and gas drilling permits in the State of Colorado unless the Commission could prove that drilling would not impair other resources. In accordance with its Rules, the Commission solicited and received written comments and held a hearing on the proposed rulemaking. At the conclusion of the rulemaking process, the Commission issued an order unanimously denying the petition. The minors then sought judicial review of the Commission s Order. On February 19, 2016, the Colorado District Court affirmed the Commission s Order. Martinez v. Colorado Oil & Gas Conservation Comm n, No. 14CV32637 (D. Denver Feb. 19, 2016) ( Dist. Ct. Op. ). Specifically, the District Court ruled the Colorado Oil and Gas Conservation Act (the Act ), C.R.S. 34-60-101 to 34-60-130, requires the Commission to balance the need for energy development with other state interests. Dist. Ct. Op. at 6 8. The District Court reached this conclusion by looking at the legislative declaration in 2

the Act, wherein the Colorado General Assembly declared it 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[.] C.R.S. 34-60-102(1)(a)(I). The District Court interpreted this provision to require[] a balance between the development of oil and gas resources and protecting public health, environment and wildlife. Id. at 6. On appeal, the Colorado Court of Appeals, in a 2-1 decision, reversed the judgment of the District Court. Martinez v. Colorado Oil & Gas Conservation Comm n, No. 16CA0564, 2017 WL 1089556 (Mar. 23, 2017). In so doing, the Court of Appeals ruled C.R.S. 34-60-101(1)(a)(I) does not require the Commission to balance oil and gas development in a manner consistent with the protection of public health, safety, welfare, etc. Id. at *4. Instead, the Court of Appeals interpreted the phrase in a manner consistent with as meaning subject to, thereby subordinating the ability to develop oil and gas resources to the protection of public health, safety, welfare, etc. Id. at *5. Based on its interpretation, the Court of Appeals instructed the District Court to remand the case to the Commission so the Commission could reconsider the rulemaking petition. 3

Id. at *8. On January 29, 2018, this Court granted the Petition for Writ of Certiorari. SUMMARY OF THE ARGUMENT The right to own and use property existed before the creation of governments. In fact, people formed governments for the protection of their property, which is essential to liberty. Thus, the principle function of government is to ensure the sanctity of private property. The right to freely acquire, dispose, and, most importantly, use property is protected by the common law, state law, and the U.S. Constitution. In addition, oil and gas property interests are protected in Colorado by the clear, unambiguous, and plain meaning of the Act. In this case, the Court of Appeals relied on language in a legislative declaration to reach the illogical conclusion that absolute protection of the public health, safety, and welfare is a precondition to the exercise of protected private property rights. This erroneous interpretation would unconstitutionally deprive mineral estate owners in Colorado of their protected property rights and subject the State to massive liability. 4

ARGUMENT That government can scarcely be deemed to be free, where the rights of property are left solely dependent on the will of the legislative body, without any restraint. The fundamental maxims of a free government seem to require; that the rights of personal liberty and private property, should be held sacred. At least, no court of justice in this [country] would be justified in assuming, that the power to violate or disregard them, a power so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well being, without very strong and direct expressions of such an intention. Justice Joseph Story in Wilkinson v. Leland, 27 U.S. 627, 634 (1829). I. THE PURPOSE OF GOVERNMENT IS TO PROTECT PRIVATE PROPERTY A. The Right To Property Is A Fundamental Right That Is Essential To Liberty The U.S. Supreme Court recognizes it as an essential principle that [i]ndividual freedom finds tangible expression in property rights. United States v. James Daniel Good Real Prop., 510 U.S. 43, 61 (1993). In his famous Second Treatise of Government, John Locke explained private property existed under natural law before the creation of governments. John Locke, Second Treatise of Government, 25 51 (1690) (C. B. Macpherson ed., 1980). Because private property existed before government, any legitimate government is based on a compact whereby people gave their allegiance to the government in exchange for 5

the protection of their property. Locke, Second Treatise, supra, 123 131. From the very beginning of the United States, the Declaration of Independence proclaimed to the world that the sole purpose of government was to secure the natural liberty held by individuals. 1 Stat. 1 (July 4, 1776); cf. Cotting v. Godard, 183 U.S. 79, 107 (1901) ( [I]t is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. ). In fact, the sanctity of property in America can be traced as far back as the year 1215 and Magna Carta. Bernard H. Siegan, Economic Liberties and the Constitution 1 57 (2d ed. 2006) (hereinafter Siegen, Economic Liberties ); see also United States v. Lee, 106 U.S. 196, 228 (1882) (Gray, J., dissenting) (Magna Carta is the origin of the provision, embodied in the fifth amendment of the constitution of the United States, that no man shall be deprived of life, liberty, or property without due process of law. ). Chapter 39 of Magna Carta (1215) provides: [n]o freeman shall be taken or imprisoned, or disseised unless by the lawful judgment of his peers, or by the law of the land. Chapter 29 of the 1225 charter broadened and replaced Chapter 39 of the original charter: No freeman shall be taken or imprisoned, or disseised of his freehold, or liberties but by lawful judgment of his peers, or by the law of the land. Siegan, Economic Liberties, supra, at 7 (quoting Magna Carta (1225)). Its purpose was to secure 6

private property against arbitrary deprivations by the government. James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights 13 (2d ed. 1998) (hereinafter Ely, The Guardian ). The English colonists brought Magna Carta s property rights principles with them to the New World. See Horne v. Dep't of Agric., 135 S. Ct. 2419, 2426 (2015). William Blackstone, whose works constituted the preeminent authority on English law for the founding generation, Alden v. Maine, 527 U.S. 706, 715 (1999), characterized private property rights as sacred and inviolable. 1 Commentaries on the Laws of England 134 135 (1765); see also John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights 27 (1986) ( In the eighteenth century pantheon of British liberty there was no right more changeless and timeless than the right to property. ). As this Court has recognized, Blackstone says: The third absolute right inherent in every Englishman is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control of diminution, save only by the laws of the land. City & Cty. of Denver v. Sheriff, 96 P.2d 836, 840 (Colo. 1939). Moreover, these principles regarding the right to property set forth in the common law were incorporated into the U.S. Constitution. See Siegan, Economic Liberties, supra, at 7. James Madison explained, [g]overnment is instituted to 7

protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own. James Madison, Property, The National Gazette (Mar. 27, 1792), reprinted in 14 The Papers of James Madison (R. Rutland ed., 1983). At the 1787 Constitutional Convention, Alexander Hamilton pronounced, one great obj[ect] of Gov[ernment] is [the] personal protection and security of property. 1 Records of the Federal Convention of 1787, at 302 (Max Ferrand ed., 1911). During the Virginia ratifying convention, future-chief Justice John Marshall argued that weak government under the Articles of Confederation t[ook] away the incitements to industry, by rendering property insecure and unprotected. James W. Ely, Jr., The Marshall Court and Property Rights: A Reappraisal, 33 John Marshall L. Rev. 1023, 1027 (2000). At its core, property ownership gives individuals freedom from government s dictation of every aspect of their lives. D. Benjamin Barros, Property and Freedom, 4 NYU J.L. & Liberty 36, 51 52 (2009) (explaining that, in a system without property or markets, determinations of how various resources are allocated must now be made by governmental authorities ) (citing Charles Lindblom, Politics and Markets 50 (1977)). Thus, the Framers recognized that 8

property ownership [is] a buffer protecting individuals from government coercion. Ely, The Guardian, supra, at 43. It is also well recognized that property constitutes more than permanent physical objects and the right to naked possession; it embraces the right to use property. Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 58 60 (1985); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) ( Property rights in a physical thing have been described as the rights to possess, use and dispose of it. ) (quoting United States v. General Motors Corp., 323 U.S. 373, 378 (1945)); Monongahela Navigation Co. v. United States, 148 U.S. 312, 324 (1893) ( [I]n any society the fullness and sufficiency of the securities which surround the individual in the use and enjoyment of his property constitute one of the most certain tests of the character and value of the government. ); Barros, Property and Freedom, supra, at 47 (the right to use is one of the four classic incidents to property and rights to exclude and possess would be meaningless without the right to use). B. Colorado Recognizes And Protects Property Rights In Oil And Gas Colorado recognizes a mineral estate as an interest in real property. Simson v. Langholf, 293 P.2d 302, 306 (Colo. 1956); Mitchell v. Espinosa, 243 P.2d 412, 416 17 (Colo. 1952). Thus, Colorado oil and gas deposits are treated as estates in 9

real property. OXY USA Inc. v. Mesa Cty. Bd. of Commissioners, 405 P.3d 1142, 1144 (Colo. 2017). The oil and gas estate can be conveyed, leased, or reserved. See Simson, 293 P.2d at 306 07. Moreover, the right to extract the oil and gas is the essential stick in the bundle of rights making up the oil and gas estate. See Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 926 (Colo. 1997) ( Severed mineral rights lack value unless they can be developed. ); see also Rocky Mountain Fuel Co. v. Heflin, 366 P.2d 577, 580 (Colo. 1961) (the severed mineral owner's right of access includes the rights of ingress, egress, exploration, and surface usage as are reasonably necessary to the successful exploitation of [the mineral] interest. ); Evans Fuel Co. v. Leyda, 236 P. 1023, 1024 (Colo. 1925) ( freehold in the minerals underneath the surface estate includes a right of access to mine and extract the minerals ); cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922) ( For practical purposes, the right to coal consists in the right to mine it. ) (internal quotations omitted). Oil and gas property interests are further protected in the State of Colorado by the Colorado Oil and Gas Conservation Act. C.R.S. 34-60-101 to 34-60- 130; see also City of Fort Collins v. Colorado Oil, 369 P.3d 586, 593 (2016) ( The state's interest in oil and gas development is expressed in the Oil and Gas 10

Conservation Act. ). The Act provides in the legislative declaration that it is in the public interest to [s]afeguard, protect, and enforce the coequal and correlative rights of owners and producers. C.R.S. 34-60-102(1)(a)(III). The Commission was charged with preventing waste in the production and utilization of oil and gas[.] C.R.S. 34-60-102(1)(a)(II). The type of waste the Act was seeking to avoid included locating, spacing, drilling, equipping, operating, or producing... which causes or tends to cause a reduction in quantity of oil or gas ultimately recoverable... Oil & Gas Conservation Act of 1955, ch. 208, 2 (amending C.R.S. 100-6-3 (1953)); see also C.R.S. 34-60-107 ( The waste of oil and gas in the state of Colorado is prohibited. ). Thus, the Act was always intended to ensure owners of private oil and gas interests had the right to develop those valuable interests. Any determination to the contrary is not only repugnant to the State s natural resource framework, but also an affront to the entire framework of property rights in the United States. II. A COURT SHOULD INTERPRET A STATUTE ACCORDING TO ITS PLAIN AND ORDINARY MEANING. A. Legislative Declarations Cannot Trump The Operative Provisions Of Statutes. It is well-settled law that operative provisions of a statute should not be overridden by a legislative declaration unless the statute is ambiguous. See C.R.S. 11

2-4-203(1)(g) (identifying the legislative declaration or purpose as one available aid in construing ambiguous statutes). Yet here, the Court of Appeals relied on the legislative declaration without considering the operative provisions of the Act and in a manner that rendered the bulk of the Act meaningless. Martinez, 2017 WL 1089556 at *6-8. The primary goal in statutory interpretation is to ascertain and effectuate the General Assembly's intent. Marsh v. People, 389 P.3d 100, 105 (Colo. 2017) (quoting Platt v. People, 201 P.3d 545, 551 (Colo. 2009)). To do so, [this Court] accord[s] statutory words and phrases their plain and ordinary meanings. Teague v. People, 395 P.3d 782, 784 (Colo. 2017). If a statute is clear and unambiguous, this Court looks no further and applies the words as written. Colorado Dep't of Revenue v. Creager Mercantile Co., 395 P.3d 741, 744, as modified on denial of reh'g (Colo. 2017) (citing Colorado Motor Vehicle Dealer Bd. v. Freeman, 375 P.3d 111, 113 (Colo. 2016)); Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) ( If the statutory language is clear, we apply the plain meaning and we do not add words to the statute. ) (quotations omitted); People v. Zapotocky, 869 P.2d 1234, 1238 (Colo.1994) ( When the statutory language is clear and unambiguous, the statute must be interpreted as written without resort to interpretive rules and statutory construction. ). 12

This Court has made clear that legislative declarations are not binding on their own and can offer only help in discerning legislative intent in ambiguous statutes. People v. Enea, 665 P.2d 1026, 1028 29 (Colo. 1983) (prefatory statement of legislative purpose did not alter the elements of the crime); see also Bd. of Cty. Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263, 1272 (Colo. 2001), as modified on denial of reh'g (Mar. 19, 2001) ( While courts consider legislative declarations in the construction of constitutional provisions the judiciary is the final arbiter of what the laws and the constitutions provide ) (internal citations omitted). Thus, it is only when the statutory language is fairly susceptible to more than one meaning that the language becomes ambiguous, and courts resort to other aids in statutory construction, such as the legislative declaration. See Sigala v. Atencio's Mkt., 184 P.3d 40, 43 (Colo. 2008). By its own terms, the Act requires the Commission to prevent and mitigate significant adverse environmental impacts, and also take into consideration costeffectiveness and technical feasibility. C.R.S. 34-60-106(2)(d). 1 Despite the provisions allowing the Commission to prevent and mitigate significant 1 The actual authority of the Commission to regulate the environmental impacts of oil and gas development is set out in Colo. Rev. Stat. 34-60-106(2)(d). 13

environmental impacts, the Commission s main purpose under the Act is still to foster responsible development and production of oil and gas, protect property rights, and protect against waste in the production and utilization of oil and gas. C.R.S. 34-60-102(1)(a)(I), (II), (III). In the instant case, the Court of Appeals admitted the language of section 34-60-102(1)(a)(I) is clear and unambiguous. Martinez, 2017 WL 1089556 at *4. Thus, if the act was unambiguous, as both lower courts admitted, the court s only job would be to apply the plain meaning of the statute without resorting to other aids in statutory construction. Sigala, 184 P.3d at 43. It would be an abuse of discretion to assume the plain meaning of the Act allows or requires the Commission to consider public health, safety, and the environment as superior to the property rights that the Act was specifically written to protect. In short, the Court of Appeals allowed the tail (i.e., the legislative declaration) to wag the dog (i.e., the operative provisions) and essentially renders it impossible to drill an oil and gas well in Colorado. B. The Phrase In A Manner Consistent With Is Not Synonymous With The Subordinating Phrase Subject To. The Act provides the Commission shall 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, 14

safety, and welfare, including protection of the environment and wildlife resources[.] C.R.S. 34-60-101(1)(a)(I) (emphasis added). The Court of Appeals erred when it interpreted the phrase in a manner consistent with as synonymous with subject to. Martinez, 2017 WL 1089556 at * 5 ( [I]n a manner consistent with does not indicate a balancing test but rather a condition that must be fulfilled. ). To determine the ordinary meaning of a phrase or word the courts turn to their common usage as found in the dictionary. Bertrand v. Bd. of Cnty. Comm rs of Park Cnty., 872 P.2d 223, 228 29 (Colo. 1994). The ordinary meaning of consistent with means to be consistent, harmonious or in accordance with and consistent means compatibility, congruously, in harmony with. Webster s Third New Int l Dictionary Unabridged 484 (2002) ( Webster s ). Further, balance is defined as measure[ing] competing interests and offset[ting] them appropriately. Black s Law Dictionary (10th ed. 2014). Whereas, subject to is subordinate and subservient. Stupak-Thrall v. U.S., 89 F.3d 1269, 1285 (6th 1996) (Boggs, J., dissenting) (quoting Black s Law Dictionary 1287 (5th ed. 1979); Michelin Tires (Canada) Ltd. v. First Nat l Bank of Boston, 666 F.2d 673, 677 (1st 1981) ( The words subject to used in their ordinary sense, mean subject to, subservient to, or limited by. ) (quotation omitted)); Portland Gen. Elec. Co. v. 15

Bonneville Power Admin., 501 F.3d 1009, 1028 29 (9th 2007) (the words subject to imposed a limitation on the agency s authority). This language in no way requires the Commission to elevate environmental concerns above all other concerns. Because the Court of Appeals conflated in a manner consistent with and subject to, its interpretation of the Act should be reversed. III. THE COURT OF APPEALS OPINION RAISES SERIOUS CONSTITUTIONAL ISSUES. The canon of constitutional avoidance directs that courts should not construe statutes in a manner that renders them vulnerable to challenge on constitutional grounds. See Pub. Citizen v. U.S. Dep t of Justice, 491 U.S. 440, 466 (1989) ( [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. ) (internal quotations omitted); People v. Montour, 157 P.3d 489, 503 04 (Colo. 2007) (Under the doctrine of constitutional avoidance... courts have a duty to interpret a statute in a constitutional manner where the statute is susceptible to a constitutional construction. ) (citations omitted). The Court of Appeals interpretation of 34-60-102 elevates environmental concerns above oil and gas property interests. 16

Should this interpretation stand, it may subject the State of Colorado to serious liability in the form of constitutional takings claims. Under the Court of Appeals interpretation, the Commission cannot balance oil and gas development with environmental concerns, but instead must deny all drilling permits unless it is proven that drilling and the concomitant development will have no environmental effects. See Martinez, 2017 WL 1089556 at *5. As such, the Commission has the impossible task of proving a negative. Cf. People v. Interest of Y.D.M, 593 P.2d 1356, 1360 61 (Colo. 1979) (en banc) (Declining to impose on the State the task of proving a negative, which it deemed an impossible or futile task. ). Because of the burden imposed by the Court of Appeals interpretation, it is highly likely no new drilling permits will be issued and the oil and gas industry in the State of Colorado will die out. Yet, in actuality, the automatic denial of a drilling permit would effectuate a constitutional taking, for which just compensation would be owed. Miller Bros., 513 N.W.2d at 219 20 (Michigan s prohibition of drilling in the Nordhouse Dunes area effectuated a taking); see Union Oil Co. of California v. Morton, 512 F.2d 743, 751 (9th Cir. 1975) (noting that an open-ended suspension of the right[s] granted to a federal oil and gas lessee would effectuate a taking for which just compensation would be owed); cf. Pennsylvania Coal Co., 260 U.S. at 414 15 ( To make it commercially 17

impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it. ). Therefore, the net effect of the Court of Appeals interpretation is that the State of Colorado could face constitutional takings and just compensation claims that could total billions of dollars. See Miller Bros., 513 N.W.2d at 220 (noting the trial court had awarded the property owners $71,479,000 as just compensation for the property taken, plus interest, costs, and attorney fees ). 2 It is obvious the General Assembly did not pass the Act to prohibit all drilling and to pass billions of dollars of liability to Colorado taxpayers. Ingram v. Cooper, 698 P.2d 1314, 1315 (Colo. 1985) (en banc) ( There is a presumption that the General Assembly intends a just and reasonable result when it exacts a statute, and a statutory construction that... leads to an absurd result will not be followed. ) (citations omitted). Therefore, the Court of Appeals should have deferred to the Commission s reasonable interpretation of the Act i.e., that the Act requires the 2 Although the Michigan Court of Appeals vacated the trial court s judgment and remanded for a new determination of just compensation, the property owners ultimately received more than $90 million from the State of Michigan. Keith Schneider, What Happened in the Nordhouse Case, Great Lakes Bulletin News Service (Apr. 19, 1997), available at http://www.mlui.org/mlui/newsviews/articles-from-1995-to-2012.html?archive_id=1407#.wroixwgrkuk (last viewed Mar. 22, 2018). 18

Commission to balance oil and gas production with public health, safety, and welfare. Huber v. Colo. Mining Ass n, 264 P.3d 884, 889 (Colo. 2011) ( As with any potential conflict between legislative provisions, we endeavor to give effect to the language and intent of both if possible; if two constructions are possible one constitutional, the other unconstitutional we choose the construction that avoids reaching the constitutional issue. ) (citing Colo. Dep t of Labor & Employment v. Esser, 30 P.3d 189, 194 (Colo. 2001)). Because the Court of Appeals interpretation of the Act leads to the absurd result of condemning all property rights in oil and gas, its decision should be reversed. IV. IF THE COURT OF APPEALS DECISION IS UPHELD, IT COULD HAVE A DETRIMENTAL IMPACT ON OTHER MINERAL ESTATES The absurd conclusion reached by the Court of Appeals endangers other property rights and mineral estates in the State of Colorado. The General Assembly has created a similar system for mining permits with the Colorado Mined Land Reclamation Act ( Reclamation Act ). C.R.S. 34-32-101 to 34-32-127. The Reclamation Act created the Mined Land Reclamation Board ( Reclamation Board ), which performs a similar function to the Commission. C.R.S. 34-32-105. Under the Reclamation Act, any operator proposing to engage in a new mining operation must first obtain a reclamation permit from the 19

Reclamation Board. C.R.S. 34-32-109(2); see also C.R.S. 34-32-112 (permitting process). Mining operations covered by the Reclamation Act include open mining, in situ mining, in situ leach mining, surface operations, and the disposal of refuse from underground mining, in situ mining, and in situ leach mining. C.R.S. 34-32-103(8). Minerals covered by the Reclamation Act include any inanimate constituent of the earth in a solid, liquid, or gaseous state which, when extracted from the earth, is useable in its natural form or is capable of conversion into a useable form as a metal, a metallic compound, a chemical, an energy source, or a raw material for manufacturing or construction material. C.R.S. 34-32-103(7). The Colorado Land Reclamation Act for the Extraction of Construction Materials ( Construction Materials Act ), C.R.S. 34-32.5-101 to 34-32.5-125, tasks the Reclamation Board with performing a substantially similar role in permitting mining for rock, clay, silt, sand, gravel, limestone, dimension stone, marble, or shale. See C.R.S. 34-32.5-103(3), see also C.R.S. 34-32.5-109 (permitting process). The Colorado Surface Coal Mining Reclamation Act ( Coal Act ), C.R.S. 34-33-101 to 34-33-137, similarly tasks the Reclamation Board with permitting the extraction of surface coal. 20

If a legislative declaration is allowed to trump the operative provisions of an unambiguous statute, it could exponentially multiply the damage caused by the Court of Appeals decision in these other areas of mineral law. Language could be cherry-picked from the legislative declarations in the Reclamation Act, Construction Materials Act, and Coal Act and used to create another subject to condition, whereby all mineral estates would be subject to the same fate as oil and gas interests. See, e.g., C.R.S. 34-32-102(1) ( It is the further intent of the general assembly by the enactment of this article to conserve natural resources, to aid in the protection of wildlife and aquatic resources, to establish agricultural, recreational, residential, and industrial sites, and to protect and promote the health, safety, and general welfare of the people of this state. ); C.R.S. 34-32.5-102(1) ( It is the further intent of the general assembly to conserve natural resources, aid in the protection of wildlife and aquatic resources and protect and promote the health, safety, and general welfare of the people of this state. ); C.R.S. 34-33- 102 ( It is the further intent of the general assembly to protect society and the environment from the adverse effects of surface coal mining operations. ). Therefore, this Court should protect all property rights in Colorado by reversing the Court of Appeals. 21

reversed. CONCLUSION Based upon the foregoing, the judgment of the Court of Appeals should be DATED this 2nd day of April 2018. Respectfully submitted, /s/ Cody J. Wisniewski Cody J. Wisniewski (CO Bar No. 50415) MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 (303) 292-1980 (facsimile) cody@mountainstateslegal.com Attorney for Amicus Curiae Mountain States Legal Foundation 22

CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of April 2018, the foregoing document and its attachments were filed with the Supreme Court of the State of Colorado and true and accurate copies of the same were served on the following counsel of record via the Integrated Colorado Courts E-Filing System: Frederick Richard Yarger John Edward Matter Kyle William Davenport Marian Camille Larsen OFFICE OF THE ATTORNEY GENERAL OF COLORADO Attorneys for Colorado Oil and Gas Conservation Commission James Leftwich MINDDRIVE LEGAL SERVICES LLC Julia Olson WILD EARTH ADVOCATES Katherine Lynn Toan Merlin COLORADO ENVIRONMENTAL LAW Attorneys for Respondents Dale Ratliff Jennifer Lynn Biever Jessica Adler Black Livingston HOGAN LOVELLS US LLP Julie A Rosen Matthew Kallop Tieslau Richard Carl Kaufman RYLEY CARLOCK & APPLEWHITE Attorneys for American Petroleum Institute and Colorado Petroleum Association /s/ Cody J. Wisniewski Cody J. Wisniewski (CO Bar No. 50415) MOUNTAIN STATES LEGAL FOUNDATION 23