Loveland's Independent News Source

Loveland - February 14, 2014

Despite the fact District Court Judge Daniel Kaup dismissed Larry Sarner's challenged of a petition to place a
fracking ban on Loveland's ballot, Loveland may be bringing the matter back to court.

In a "Privileged & Confidential" memorandum to Loveland's City Council on January 20, 2014 Loveland City
Attorney John Duval recommended the city go to court to resolve two issues with the petition even if passed
by city voters in a special election.

1.  Enforceability

According to Duval,
"If the moratorium is ultimately adopted by the voters, it is hard to predict what the
City's costs would be to defend the moratorium because the decision would first need to be made by the
Council whether it wants to defend it or not,"
 In anticipation of litigation by oil and gas interests or
McWhinney, Duval is recommending the City Council authorize filing a "
declaratory relief" action.  This is a
legal term for when a party is simply asking the court to make the determination as to whether or not
something is legal.  The lawsuit involving Sarner only challenged the legitimacy of the petition  but not the
constitutionality of the proposed ban that will need to become part of the city's code if adopted.

2.  Funding for Study

On the issue of the study called for in the petition, Duval expressed the legal opinion the city doesn't need to
conduct or pay for the proposed study even if the measure is passed by voters.  Duval stated in the same
confidential memorandum to Council,
"...from my reading of the moratorium, I see no affirmative
obligation on the City's part to conduct and pay for such a study."
This is at odds with several members of
the Council who worked with the committee gathering the signatures.] and promised a complete study by
the city if passed.  

Election Date

Following the judge's decision on the Sarner case upholding the ruling of Loveland's City Clerk who declared
the number of signatures gathered were valid for the petition to be qualified, it is up to Loveland's City
Council now to approve the date for the election which is likely to be an all mail-in ballot unless combined
with another already scheduled election.

If voters pass the moratorium, most of the council is concerned about the legal bills associated with
defending the action which private property owners in Ft. Collins and Longmont have challenged in court as
a taking of their private property rights.  In either case, it appears the City of Loveland will not fund the
proposed study which is the purpose of the temporary ban along with potentially not defending the law in
court if passed by the voters.
City Likely Going to Court Again
Over Fracking Petition
Attorney says not enforceable and city won't pay sudy
Fracking Stories Archive